Jean-Franois Gaudreault-DesBiens, Toronto

Fabien Glinas, MontralMai 2005

VII

ACKNOWLEDGEMENTSThe papers published in this book were first presented at an internationalconference on federalism, which took place at the Faculty of Law of McGillUniversity, in Montreal. Having been directly involved in the organizationof this conference at one time or another, we wish to thank Professor PeterLeuprecht, then Dean of the Faculty of Law, for his unfaltering support. Wealso wish to thank the following contributors for their financial and logisticalsupport: the McGill Faculty of Law, the Canadian Department of ForeignAffairs and International Trade, Osler, Hoskin & Harcourt LPP of Montreal,and the Conferences principal sponsor, the Forum of Federations.Our special thanks go to Ms. Julie Guyot, whose contribution to the planning and organization of the conference was a key element to its success, to Ms.Louise Beaudet who assisted her, to Ms. Marianne Breeze who was responsiblefor a large part of the editing work, to Ms. Emma Blanchard for her draft translation of the introductory text, and to Ms. lise Labrecque who courageouslyoversaw the material preparation of this book. Our special thanks also go toMs. Danielle Miller, who was greatly involved in the preperation of the missionstatement for the authors.Finally, we wish to thank the authors for their generous contribution tothis project and their patience in the preparation of this book.

Opening New Perspectives

on FederalismJean-Franois GAUDREAULT-DESBIENS*Fabien GLINAS**Where Do We Come From? What Are We?Where Are We Going?1

INTRODUCTION2The moods of federalism are swinging. Beyond the accurate but triteobservation that the past few years have evidenced a resurgence of interest inthe practice and study of federalism, it would be impossible to ignore the factthat the multiplicity of its modern forms complicates our understanding. In fact,while they share a number of fundamental characteristics, federal structures areelaborated in particular socio-political contexts and evolve in unique ways.This diversity, which frustrates any inclination to advance an exhaustive andprescriptive account of federalism, creates a situation where the study of thevaried expressions of the federal phenomenon appears more promising thanthe traditional understanding of federalism as a mode of state organization.Federalism knows a number of states. Confronted, in this traditionalunderstanding, with phenomena like the re-emergence on an international scaleof identities heretofore contained within established federations, or the elaboration of an increasingly invasive transnational legal order, notably in the areaof international trade, its very relevance or, at the least, its capacity to adaptare put to a difficult test. Similarly, federalism is condemned to become morecomplex as it evolves, to the extent that the state with which it is associated* Professor at the Faculty of Law, University of Toronto.** Professor at the Faculty of Law, Director, Institute of Comparative Law, McGill University.1. From Paul Gauguins painting entitled Where Do We Come From? What Are We? Where AreWe Going?, 1897, Museum of Fine Arts, Boston, Tompkins Collection. See M. PROTHERand C.F. STACKAY, Gauguin: A Retrospective (New York: Park Lane, 1989) at 28.2. For the purposes of this article, we have systematically translated into English the title ofthe articles published in French in this book. We have adopted the same policy in respect ofquotations excerpted from these articles.

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THE STATES AND MOODS OF FEDERALISM

is also evolving and becoming more complex. But does it remain advisableto link, inextricably, state and federalism? Are federal dynamics not alsoevidenced within organizations or entities which do not display, stricto sensu,the characteristics of a state? Can we, in other words, conceptually separate theSiamese twins, federalism and state, despite the traditional doctrinal belief thatheld them to be inseparable? This very question suggests the necessity ofrethinking the federal phenomenon in a theoretical framework larger thanthat of an essentially institutional reflection upon the organization of states.Federalism certainly remains an important mode of state organizationonethat is canvassed more and more frequentlybut it may also be envisionedfrom the perspective of the legal culture that it underlies, the minimal levelof civility that it presupposes, or the aspirations that it promotes, whether ornot they are formally juridified. These are questions the study of which leads topluralizing a theoretical model which, to date, has served as the principalframework for most legal inquiries in this area.It is not happenstance that we put the emphasis on legal research into federalism. It is, in fact, difficult not to notice the extent to which jurists haveseemed disinterested, in the past decades, in the theory of federalism. With veryfew exceptions, the majority amongst them have directed their efforts towardsthe strictly technical dimensions of the legal relationships that a federal regimeimplies, or towards the questions of methodology that the comparative study offederalisms gives rise to. The use of the expression federal phenomenon asopposed to federalism in the mission statement given to the contributors tothis book was aimed at encouraging academics, and notably the jurists amongthem, to imagine this phenomenon from an angle which extends beyondthe technical realm. One of the objectives of this book was, in that sense, to contribute to the laying bare of ideas of federalism in order to pave the way for apossible retheorization of the concept and further to recast juridical thinking ina dialogical relationship with political, economic, and philosophical thought inthis area of research. This explains why the majority of the authors contributingto this book are jurists. However, this does not prevent interdisciplinarity and,in certain cases, transdisciplinarity from playing a seminal role in it. That said,whatever their disciplinary approach, all were invited, as the title of this booksuggests, to grasp federalism in all of its states and moods.I.

Phenomenology of Federalism and Methodology of Comparative

Federalism

They first did it by raising the question of perspective. How to approach

the federal phenomenon? From which angle should it be scrutinized? Howto bring together the diverse expressions of this phenomenon? The premise ofthis type of inquiry, which is the object of the first part of the book entitledPhenomenology of Federalism and Methodology of Comparative Federal-

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OPENING NEW PERSPECTIVES ON FEDERALISM

ism, is the recognition of the lack of a truly prescriptive model of federalism, a

fact which, though empirically incontestable, is nonetheless often contradictedwhere particular expressions of federalism are equated with federalism as awhole. In other words, the federal phenomenon is generally reduced, in political discourse, to only one of its incarnations. The national prism through whichobservers often apprehend the phenomenon can have the effect of radicallydistorting their perceptions and, as such, acts as an epistemological obstacle.3In other respects, pathologies of this nature may infect the act of comparison itself. This is why it is of the utmost importance, before proceeding to aphenomenology of federalism, or a comparative analysis of the expressions anda retheorization of this phenomenon, to reflect on the various pitfalls whichthreaten such intellectual enterprises. It falls to Bruno Thret of the CentreNational de la Recherche Scientifique in Paris and to Vicki Jackson of theFaculty of Law at Georgetown University to meet this challenge.In his contribution entitled From the Federal Principle to a Typology ofFederations: Some Proposals, Thret addresses himself to what we might callan epistemology of comparison. Adopting as a postulate the necessity ofconstructing the comparable, Thret suggests that from this perspective,there is no such thing as a comparison that is not constructed and referred toa theoretical problem, which in turn must be posited in structural terms andin terms of configurations between elements. Applied to the federal phenomenon, this approach thus implies the need for a theoretical recasting of federalism.4 This imposes on comparative scholars the duty to avoid the intellectualimpasses which consist of the reduction of the federal phenomenon to one ofits particular expressions, a reduction that prevents its much-needed retheorization, and the cultural relativism which leads to denying any possibility ofcomparing the allegedly incomparable local experiences of implementation ofthe federal principle.5 He ironically notes that the comparative approachwhich allows for the avoidance of these pitfalls [itself] requires a reconciliation between the abstract unity of the federal principle and the concrete diversity of the federal phenomenon.6 According to Thret, both this principleand this phenomenon must be conceived as much in light of the relationshipsexisting between the collective entities composing each federation, which aregenerally embodied in orders of government, as in view of those linking thesecollective entities and the individuals evolving within them. From this perspec3. The concept of epistemological obstacle was developed by philosopher Gaston Bachelardwho used it to isolate the causes, often internal as a result of their discursive origin, of intellectual stagnation. See G. BACHELARD, La formation de lesprit scientifique. Contribution une psychanalyse de la connaissance objective, 12th ed. (Paris: Vrin, 1983).4. B. THRET, Du principe fdral une typologie des fdrations : quelques propositions inchapter 1, at 106.5. Ibid. at 108.6. Ibid. at 110.

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to obscure these two levels of relationships, may, in the end, preclude a complex understanding of both the federal principle and the federal phenomenon.Having made these important methodological remarks, Thret proposes,on the basis of a process that is both inductive and deductive, a provisionaltypology designed to place in order the diverse expressions of the federal phenomenon. This typology is articulated around two broad criteria. The first is ofa politico-legal nature and purports to distinguish the types of constitutionalrelationshipsintra- or inter-stateprevalent between federal and federatedgovernmental orders; the other is concerned with the monetary and fiscal regulatory regime that is in place within each federation. Thret also leaves the dooropen to the potential use of a criterion based on the associative or devolutionarycharacter of the original federal agreement.Thret is an economist. In the spirit of a certain ideal-typical method insocial sciences, his approach to comparative federalism has no prescriptiveaim.7 Furthermore, though he incidentally addresses the question of why weshould compare, his primary focus is on how to compare.Vicki Jackson, for her part, inverts the equation in her article Comparative Constitutional Federalism: Its Strengths and Limits. Situating the issueof comparative federalism in the larger framework of comparative constitutionalism, she points out that while a phenomenon of growing transnationalizationcan be observed in judicial constitutional discourse, federalism appears to haveescaped this tendency. She raises, however, the legion of advantages that can bedrawn from an intellectually rigorous comparison of diverse systems of law, beit a more nuanced understanding of certain fundamental concepts (for example,equality or dignity), a new perspective on certain local constitutional particularities presented as givens, a re-examination of the theory of the sources of constitutional law, or a deepening of the analysis of the influence of institutionalstructures and their configuration on the achievement of social objectives.8Also, how is one to explain that, despite a resurgence of interest in federalismon a global scale, the courts of federal or quasi-federal countries remain reluctant to rely on relevant precedents from other jurisdictions where they concernfederalism, while displaying little hesitation where these precedents are relatedto human rights? Is federalism conceivable only through its local expressions,and is reflection on federalism ineluctably condemned to relativism? Without7. We refer here to an ideal type of social science because, as Thret himself acknowledges, manyresearchers claiming to be part of the corpus of social sciences have used the language of scientific objectivity to mask ideological choices which, inevitably, coloured their understandingof the nature of federalism, of its relationship to other constitutional regimes, of its functions,and even of its relevance.8. V. JACKSON, Comparative Constitutional Federalism: Its Strengths and Limits in chapter 2,at 138.

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OPENING NEW PERSPECTIVES ON FEDERALISM

going as far as defending that thesis, Jackson thinks that, in fact, the comparisonof federalisms does present difficulties which are not raised by, for example,the comparison of human rights. At this stage of her institutional analysis, thehow of the comparison reunites with the why. As regards the comparison of federalisms, a polysemous concept if there ever was one, she observes that the particular problems created by this type of comparison are, first of all, the result ofthe fact that federal structures generally arise following a series of eminentlycircumstantial political compromises and that, consequently, the express constitutional provisions that flow from such compromises are less likely to befounded on firm and clearly articulated principles. They further result from thefact that federal structures make themselves out to be integral parts of a largernetwork of interdependent constitutional norms and institutions, such thatcomparing specific provisions makes no sense if they are not situated withinthe context of the system from which they emanate. Considering the contextualand structural variables that are to a certain extent encoded in each particularexpression of federalism, Jackson, without openly declaring herself a supporterof the theory of the incommensurability of federalisms, opines that the principalvirtue of comparative federalism may be linked more to its potential for aidingthe interpreter to question his own federal system than its capacity to point precisely to what might be the right answer in a given case. She concludes that itis probably in nourishing reflection on questions relating to the configurationof federations that comparative federalism could prove most useful, seemingto join American Supreme Court Justice Antonin Scalia who, in an alreadyfamous passage from a 1997 judgment, attributed to comparative analysis a roleonly in the drafting of constitutions and not in their interpretation.9 A significant difference remains, though, between Jacksons and Scalias positions:while the former introduces this distinction as a result of preoccupations linkedto methodological rigour, it is first and foremost ideological considerations thatseem to inspire the latter.Having identified the principal methodological and epistemological problems raised by the comparative study of the diverse expressions of the federalphenomenon, several broad themes concerning this phenomenon could havebeen the object of developments. Amongst them, two have caught our attention.The first concerns the relationships between federalism, governance, and identity-based complexity. This theme will be addressed in the second part of thebook. The other theme relates to arbitrations realized or realizable between certain values that could be characterized as inherent to federalism and othersproceeding from imperatives that, without being foreign to federalism, canhardly be deemed inherent to it. These will be dealt with in the third and last partof the book.

9. Printz v. United States, 521 U.S. 898 at 921, footnote 11 (1997).

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II. Governance and the Complexity of Identity

It is commonplace (and perhaps therefore at least partially true) to saythat federalism allows for the reconciliation of unity with diversity within a single society. This would explain that, thanks to the identity-based claims hittingmany states, federalism is increasingly perceived as an acceptable compromisewhich allows for the reconciliation of these two apparently contradictory idealsin a manner that is both efficient and capable of evolution.However, to confine oneself to affirming that one of the functions of federalism is to facilitate the expression of diversity while maintaining a societyscohesion or unity is equivalent to proclaiming oneself to be in favour of virtue.But although everyone tends to agree in principle that being virtuous is a rathergood thing in itself, such an agreement can only be reached if the concept of virtue is not too precisely defined. The investigation must therefore be pushed further, notably in identifying the contemporary vehicles of diversity which aremost likely to inform our reflection on federalism. We can safely hazard a guessand identify two main vehicles: the presence of national communities longestablished on a particular territory and the growing impact of the phenomenonof population migrations on the (re)configuration of political communities and,by extension, of states.Concerning the first vehicle of diversity, we might ask ourselves to whatextent a state and, a fortiori, a federation, can accommodate the existence, in itsmidst, of multiple minority identities or small nations, to paraphrase AlainFinkielkraut.10 A more difficult question is how can such an accommodationbe achieved without eclipsing the complexity and relative fluidity of these identities, on the one hand, and without inducing an outright negation of thetrans-identity dynamics that federalism is supposed to encourage, on theother?On the subject of the second vehicle of diversity, that of populationmigrations, we might ask ourselves whether federalism offers a satisfactoryvocabulary or toolbox for addressing this phenomenon which is growing inimportance. Concretely, how can federal states, existing or under construction,manage the problem of pluri- and of supra-nationality, as well as that of citizenship? This raises the question of the management of the increasingly vocal centrifugal logics that currently affect several federations. Further, the precedingquestions bring to light the central role that federalism can play in preventing10. Finkielkraut emphasizes that it is not the size or area that characterizes the small nation, it isits destiny. See A. FINKIELKRAUT, Quest-ce quune petite nation ? in M. SEYMOUR,ed., Nationalit, citoyennet et solidarit (Montral: Liber, 1999) at 435-438. Equallyenlightening is A. FINKIELKRAUT (with Antoine Robitaille), Lingratitude. Conversationsur notre temps (Montral: Qubec-Amrique, 1999).

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OPENING NEW PERSPECTIVES ON FEDERALISM

and resolving interethnic or intercommunity tensions, whether they date back

to yesterday or to time immemorial, and which are likely to pose serious problems for internal and international security.Thomas Fleiner, of the Institute of Federalism at the University ofFribourg, approaches these problems head-on by examining the rationales thatinspire state responses to this dilemma of diversity which is also that ofdifference.11 In his contribution entitled The Challenge of Ethnic Diversityto Federalism, Fleiner notes from the outset that the demographic evolution ofa growing number of states renders inevitable a redefinition of the reflection ongovernance, away from questions relating to the functioning of governmentsand towards issues pertaining to the legitimacy of those who govern. In otherwords, the most urgent question is not so much how to govern but rather how todetermine who governs whom. We have thus moved from functional to existential considerations.Having studied the factors at the heart of modern constitutional ideology12 which might prevent political actors from drawing the conclusions, juridical or otherwise, flowing from the multicultural reality present within manystates, Fleiner then examines the strategies deployed by states in response tosuch reality. These strategies are generally situated on a continuum rangingfrom the official denial of the existence of sub-state communities to the formalpromotion by a state of a dominant culture. But whatever response a state maygive to the dilemma of diversity, the presence within a given society of vehiclesof ethnic diversity increases the probability that conflicts, either open or latent,will arise. In this sense, Fleiner supposes that the healthy management ofinterethnic relations must, now more than ever, be accomplished through theidentification of the deeper causesbe they historical, political, sociological,or economicthat feed what another author has called the ideologies ofresentment.13 In this respect, it would be a mistake to imagine that the contemporary dynamics of economic globalization and the corollary shrinkage of thespace available for the expression of state sovereignty, could themselvesachieve the elimination of the interethnic frictions which may result in potentialconflicts. Furthermore, these dynamics of globalization are neither purelyeconomic, nor are they unequivocal. They express themselves, firstly, through11. On this question, see M. MINOW, Making All the Difference. Inclusion, Exclusion, andAmerican Law (Ithaca and London: Cornell University Press, 1990).12. This is, for example, the case of formalist and strictly individualist conceptions of equality orof homogenizing constitutional images of the nation be it defined on an ethnic or civicbasis. On the notion of constitutional image, see W.E. CONKLIN, Images of a Constitution(Toronto: University of Toronto Press, 1988). On the issue of the intellectual foundationsof modern constitutionalism as obstacles to a satisfactory understanding of the causes ofdiversity, see also J. TULLY, Strange Multiplicity. Constitutionalism in an Age of Diversity(Cambridge: Cambridge University Press, 1995).13. See M. ANGENOT, Les idologies du ressentiment (Montreal: XYZ diteur, 1996).

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the impact of transnational imperatives on decisions made at the local level,

and, secondly, in instances where local particularities become globalized.14 Asa result, Fleiner argues as follows:As the global market expands, the need for local justice will increase accordingly.Thus, local conflicts will not fade away. Rather, they will become more open,violent, and explosive. The cost-benefit driven Homo oeconomicus will seek tobenefit in the global market, while the Homo politicus will require local compensation for injustice caused by the global market. Consequently, the future challenges of multiculturalism will increase rather than diminish.15

In such a context, intervention strategies varying from mere tolerance

to reconciliation, as well as the recognition of collective rights or the constitutional promotion of diversity, could be envisioned. Federalism could prove inthat regard a useful tool in the management of diversity. However, such anenterprise can only succeed if all the relevant actors cooperate. These actors arenot only the state, but also constitutionally-recognized substate communities,whether the constitution is federal or not, civil society in its largest sense and,finally, the international community. From this perspective, (re)configuring agiven federal regime cannot be envisioned solely as the business of a localpolitical elite impervious to what is going on above and beyond the sovereignstate that it governs.Following Fleiners example, if one can reasonably hypothesize that federalism constitutes a particularly useful tool for apprehending the complexityand fluidity of identities in post-modern societies, it remains no less the casethat such an apprehension requires a preliminary overture to the Other as wellas a minimum of flexibility at the institutional level.At this stage, the question of the receptiveness of the diverse incarnationsof federalism to a relative level of asymmetry must be asked, which raises thelarger problem of the meaning ascribed to the notion of equality in a federalcontext, whether it speaks to equality between individuals or between groups.Does equality, in a federation, imply a relationship of identity (where a = b) orof equivalence (where a b)? These questions, which, at first glance, concernpolitical philosophy and political sociology, have concrete juridical repercussions, and are the object of an important contribution by Francis Delpre andMarc Verdussen, of the Catholic University of Louvain, entitled Equality as ameasure of federalism.14. The sociologist and jurist Boaventura de Sousa Santos named these two sub-dynamicsrespectively localized globalism and globalized localism. See B. de SOUSA SANTOS,Toward a New Common Sense. Law, Science and Politics in the Paradigmatic Transition(London: Routledge, 1995) at 263.15. T. FLEINER, The Challenge of Ethnic Diversity to Federalism in chapter 3, at 180.

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Reflecting on the meaning to be given to the concept of sovereignty in a

federal context,16 Delpre and Verdussen consider the hypothesis that equalitycould serve as a measure of the state of relations between political communitiesinstituted within a federation. Their contribution is concerned more specificallywith the notion of equality viewed from the perspective of public law. In thisrespect, the authors first distinguish between functional equality and institutional equality. Functional equality, which refers to the concept of sovereigntyshared between the federal level, on the one hand, and the federated entities, onthe other, is primarily measured against the capacity of each level of government to exercise, concretely and without undue obstacles, the jurisdictionsattributed to it by the constitution. The functional dimension of federal equalityis thus clearly linked to concepts of jurisdictional exclusivity and integrity, aswell as to that of the autonomy of federated entities. Furthermore, according toDelpre and Verdussen, the very viability of a federal state is intrinsicallyrelated to the respect of this imperative of functional equality. This imperativepresupposes a principle proscribing the subordination of one legal order, usually the federated one, to the other, usually that represented by the federal government. This subordination may operate directly, that is to say by normsimmediately applicable to the subordinated order, or indirectly, for example byway of consented norms, but in a context where the consenting order findsitself de facto subordinated. Certainly, functional equality represents an ideal asopposed to an absolute, implying therefore a relationship of equivalence ratherthan one founded on a formal identity of powers. As such, it allows for derogations, like those which ensure the primacy of the federal order in predeterminedcircumstances. However, what is essential, according to the authors, is that suchrules respond to objectively and reasonably justifiable imperatives and [...]conserve their exceptional character.17 They are thus to be narrowly construed, functional equality being, for the remainder, established as a valuewhich inspires or should inspire the federal state as a whole. It constitutes amost interesting path for reflection in the theorizing of the federal principlefrom a legal perspective.But federal equality is not limited to its functional dimension, because itcan also be understood in an institutional sense, which permits to a certainextent the expression of differentiated sovereignties. That is to say that the concept of institutional equality should not be construed so as to impose an obligation to treat all federated entities uniformly. Subject to the principles flowingfrom the categorical imperative of functional equality between federal actors,nothing prevents a federal system from tolerating, recognizing or even encouraging the expression, in diverse ways, of institutional differences between16. For a re-conceptualization of sovereignty from the perspective of federalism, see O. BEAUD,Fdralisme et souverainet. Notes pour une thorie constitutionnelle de la Fdration,(1998) 1 Revue du droit public 83.17. F. DELPRE and M. VERDUSSEN, Lgalit, mesure du fdralisme in chapter 4, at199.

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federated entities.18 This raises the prickly question of asymmetrical federalism. Delpre and Verdussen remind us that if federalism aims at uniting communities, it must also preserve diversity within the union. This objective can beachieved in different ways, asymmetry being either imposed or chosen, eithergeneral or limited, depending on the circumstances of each federation. Onething is certain, however: institutional asymmetry does not, in itself, pose aproblem from the standpoint of federalism. It can, on the contrary, sustain certain fundamental values which underlie federal forms of organization. In thissense, the concept of institutional equality should never be systematically associated with the idea of a uniform treatment, but rather should be viewed asdemanding equivalent treatment, in order to account for the needs, the interestsand the particular situation of each federated entity.19 On the other hand, if acertain degree of institutional asymmetry is acceptable, even desirable, in a federal context, some forms of asymmetry, if pushed too far, may contradict thevery idea of federalism, which also requires that unity be maintained. AsDelpre and Verdussen emphasize, asymmetry may pose problems relating tothe preservation of the general equilibrium of the federal state. If the constitution abstains from formulating principles, even elementary ones, which purportto organize the communities, the result is the creation of a mosaic state. Common organizing principles disappear. Distinct rules may end up opposing, if notopenly contradicting, each other.20 This will occur, they add, to the point ofthreatening the very idea of federal citizenship.21The fact is that political actors and citizens alike sometimes value asymmetry for itself and at other times take symmetry as having some form of intrinsic value. But this reveals a confusion between the means and the ends. Indeed,we believe that these options are only worthwhile to the extent that they serve toachieve some other purpose underlying the federal principle. On the whole,institutional symmetry or asymmetry can be usefully grasped in a federalregime only if one bears in mind the objective of maintaining the balanceof powers between federal actors. In the end, Delpre and Verdussen are probably correct in suggesting that it is a measured equality that is required in afederal context, that is to say, an equality full and plenary, where the goal is todistribute to each level of government its share of sovereignty, less complete,where the objective is to create the institutional apparatuses responsible forexercising the autonomous jurisdictions.22

OPENING NEW PERSPECTIVES ON FEDERALISM

A conception of federal equality as complex and demanding as that advocated by Delpre and Verdussen may not always be practicable in the daily runof federalism. Such a conception, which nonetheless renders conceivable solutions reconciling a solid philosophical justification and a pragmatic understanding of the empirical reality of federations, threatens to remain a dead letter iffederal actors, elevating their particular truths to the rank of general truths,adopt a rigid position and refuse any form of compromise that might open,explicitly or implicitly, the federation to the equally legitimate rationales oftheir partners. If economic, political or even juridical considerations cansometimes explain such rigidity, other causesless immediately tangible,and no doubt much deepernourish the dynamics of incomprehension, indifference or conflict encountered in the life of federations.According to Daniel Weinstock, of the Department of Philosophy at theUniversit de Montral, one of these causes can be found within the mythicalstructure that informs the conception of the federation that each federal actoradopts. In his contribution entitled The Moral Psychology of Federalism,Weinstock considers the nature and the modes of creation of these foundationalmyths within political communities and, more specifically, within federations.Weinstock distinguishes nostalgic myths, which often inform nationalist discourses inciting a community to define itself in reference to an essentializedimage of its past, from those which, as bearers of universal or universalizedaspirations, give citizens the impression of being, first and foremost, autonomous individuals liberated from the constraints of inherited memberships. Hesuggests that these two types of myths can be equally problematic in a federalcontext, notably in that both lead, in the end, to reductionist and simplisticdefinitions of identity.23 For instance, nostalgic myths may encourage citizensto conceive of their membership solely on the basis of an antiquated andidealized image of their primary community. This may prevent them fromadhering to the ideal of a meaningful federal citizenship, as opposed to one thatis merely cosmetic, if the imaginary boundaries of their community cannot bealigned with the territorial boundaries of a federated entity. For their part,aspirational myths which exhort citizens to transcend their primary allegiancesin order to create a new and broader political community may lead to wilfulblindness, and even contempt, for those holding contradictory viewswhichare not necessarily devoid of legitimacy simply because they have a nostalgicdimensionand who express reservations about a project that, according tothem, unduly tend to level the diversity and asymmetry of allegiances.Weinstock establishes in this regard an interesting correlation between the type23. The threat of identity reductionism almost inevitably accompanies any relationship wherethe overflow of memory of one collectivity responds to absence of memory of another. Seegenerally P. RICUR, La mmoire, lhistoire, loubli (Paris: Seuil, 2000) at 96-97. On thisdialectic in the Canadian federal context, see more specifically J.-F. GAUDREAULTDESBIENS, Memories, (2003) 19 Supreme Court L.R. (2d) 219.

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of foundational myth to which a community adheres and the perception that

this community has of the essence of the federation: does the federation resultfrom a process of aggregation where pre-existing communities unite to forma new entity or, on the contrary, is the federation the outcome of a process ofdisaggregation where a community engaged in a process of administrativedeconcentration/decentralization realizes that federating entities more orless created for the occasion offers better guarantees for effective governance?Supporting his thesis with an analysis of the archetypal Canada-Quebecdebate, Weinstock concludes that the solution to the problems flowing fromseemingly incommensurable foundational myths in a federal context implies,on one hand, the rejection of the nationalist categorical imperative of a unifyingmyth as well as, on the other hand, the reformulation of competing myths on thebasis of a criterion akin to Paretos optimality.24 Weinstock explains this criterion as follows: What is probably required is that the foundational myths of theconstituent parts of the federation not be mutually exclusive, that is, that theynot incorporate the federation partners in terms that these partners reject.25 Theauthor thus admits that potentially divergent myths may legitimately coexist ina federation. He even argues, against nationalist views, that a federation can dowithout a universal foundational myth that is recognized as such by all federalactors. According to him, even if the federal experiment is not entirely satisfying from an identity-based perspective, these actors will pragmatically assessthe costs and benefits linked to their participation in the federation, and, in thecase of a federation that functions reasonably well, they will likely find that thebenefits outweigh the inconveniences.At once constitutive of meanings and laden with meanings, myth is without a doubt necessary26. But it can also become pathological. Perhaps this istrue of other ideas which appear obvious and almost unchallengeable as a resultof their internalization by social actors, and which, in the long run, may inhibitefforts to think outside the box. Could the territorial paradigm, so intimatelylinked to the modern conception of constitutionalism, be one of the ideas thatblind us to the existence of other models, which sometimes have very ancientorigins? After reading Antoine Messara, of the Lebanese University and ofSaint Joseph University in Beirut, we might be led to believe so. Indeed, in his24. In essence, the Pareto criterion, which seeks to describe situations of efficiency, refers to astate where the situation of one party cannot be improved without the deterioration of anotherpartys situation. See V. PARETO, Manuel dconomie politique, 4th ed. (Geneva: LibrairieDroz, 1966). For an application of this criterion in the context of a reflection on distributivejustice in a federal regime, see W. OSSIPOW, Architecture fdraliste et exigence dejustice, (1998) 19 Revue internationale de philosophie politique 113 at 117.25. D. WEINSTOCK, The Moral Psychology of Federalism, in chapter 5, at 224.26. See G. BOUCHARD, Raison et contradiction. Le mythe au secours de la pense (Qubec:Nota bene, 2003) at 12.

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contribution entitled Principle of Territoriality and Principle of Personality in

Comparative Federalism, Messara reminds us of the limits of territorial federalism in cases where the minorities whose autonomy we want to regulate arenot geographically concentrated.27 To ignore these limits and reconfigure territories while neglecting to account for considerations pertaining to identitymay in fact exacerbate interethnic tensions, as the recent history of so manycountries reconfigured solely on the basis of territoriality has unfortunatelydemonstrated. However, as Messara notes, scholars of federalism who donot associate in one way or another this mode of government with a territoriallogic are rare in the Western world, a situation that can be explained by theirmore or less conscious adherence to the ideology of the nation-state. Messarathus pleads in favour of a reconsideration of this equation which, according tohim, is founded on shaky premises. He does so by establishing the genealogyof the principle of personality as it materialized across history in severalconsociations such as the Byzantine Empire, the Al-Andalus (contemporaryAndalusia),28 or the Ottoman Empire, where the interactions betweennon-territorialized autonomous cultural units followed a federalist logic. Hethen analyses the partially personalist logics which inform the constitutionalstructures of different contemporary jurisdictions such as Lebanon and, to acertain extent, Belgium.29 He considers in that context whether personal federalism and Islam are compatible, a crucial question if there ever was one in thepresent political dynamics of the Middle East. Messara further argues thatmany of the conflicts in that region, be they open or latent, can be attributed inpart to the imposition of the principle of territoriality where, historically, theprinciple of personality dominated. Finally, he compares the respective advantages of territorial federalism and personal federalism. According to him, theterritorial concentration of federated entities that the first model impliessimplifies the delegation of governmental or administrative responsibilities.Moreover, it reduces the interethnic frictions that increase the likelihood ofconflict, and, if necessary, facilitates territorial partition. Last, it reduces therisk of an undue compartmentalization of individual identities.30 For its part,personal federalism is more cost-effective as a result of the likely reduction ofthe number of local decision-makers. It also facilitates the development of community-based organizations in the federated cultural units by reinforcing their27. A. MESSARA, Principe de territorialit et principe de personnalit en fdralisme compar, in chapter 6, at 228.28. See, for example, the status of Jews in the Caliphate of Cordoba: J. PELAEZ DES ROSAL,ed., Les Juifs Cordoue: Xe-XIIe sicles (Cordoba: Ediciones El Almendro, 1985).29. On the elements of this personalist logic in the contemporary Indian, American, and Israelicontexts, read G.J. JACOBSOHN, The Wheel of Law: Indias Secularism in ComparativeConstitutional Context (Princeton and Oxford: Princeton University Press, 2003).30. In fact, personal federalism threatens to reduce the identity of an individual to a single characteristic on the basis of which a legal status is automatically assigned. This reduction thusappears problematic, especially if it leads to a systematic ethnicization of federalism. Onethnic federalism, see A.G. SELASSIE, Ethnic Federalism: Its Promise and Pitfalls forAfrica, (2003) 28 Yale J. Intl L. 51.

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internal cohesion. It finally confines to the most conflictual situations the problems resulting from the formalized choice that each person makes to belong to agiven cultural unit, because the community segmentation so operated is notentirely determinative of the status of that person.31Messara is not uncritical about personal federalism. On the contrary, heconcludes that, just like its territorial counterpart, this model is perfectible, andthat it would benefit from becoming more egalitarian and more open. But hiscontribution is more than a mere comparison of these two models of federalism.It also has a methodological sub-text, to which it is worth drawing attention.Messara indeed signals a perverse consequence of the hegemony of the nationstate ideology:It consists of obscuring the dysfunctions of modern federal systems and, indirectly, of considering Switzerland as a special case, Belgium as a complex case,the ethnic groups of Nigeria as tribes, the Sikhs from India as zealots, Sri Lanka asan underdeveloped country, Sudan as a theocracy, Northern Ireland as a hopelesscase... But today the problem is that these so-called special cases are widespreadand that it is rather the model of the nation-state that is special, even if it stillexerts a normative influence on constitutional scholars. An approach that confines itself to describing optimal situations cannot lead to in-depth diagnoses. Itdoes not advance comparative research, nor does it offer solutions to the countriesthat need them. Constitutional dialogue is a dialogue of the deaf if the nationbuilding ideology that frames the debate is not questioned.32

Thus, Messara challenges the creation of negative stereotypes of the Other

and their comparison, once created, to competing stereotypes of modern federal structures that are viewed favourably merely because they follow the territorial model. Reinforced as it is by the nation-building ideologys obstinaterefusal to draw formal constitutional consequences from the existence ofsub-state intermediate bodies, such a process can only resolve itself at theexpense of this Other, whose image seems so distant from what is acceptableor reasonable, according to the dominant norm, hence Messaras call in favourof an enlargement of the concept of federalism.That Messara wishes for an enlargement of that concept is not surprisinggiven his interest in the idea of personal federalism, which, in a sense, impliessuch an enlargement because it responds to a very different logic than thatwhich informs the classical understanding of federalism in the Western constitutional tradition. In contrast to the territorial model where a given legal regimeis imposed on individuals by virtue of their mere presence in the territory of the31. MESSARA, supra, note 27, at 232.32. Ibid. at 241.

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regulatory entity, personal federalism implies a possibility for individuals to

choose the constitutionally recognized community to which they wish tobelong.33The voluntarism which underlies personal federalism draws our attentionto the more or less explicit contractual logic that characterizes this model ofadhesion of the individual to a personal juridical status made available by theconstitution. Thus, if juridical modernity has been associated, at least since thework of Sumner-Maine, with a passage from status to contract, the logic whichinspires personal federalism makes the picture more complex by recognizingthe possibility of an intermediary stage, that of a contract-based status, onethat is wilfully chosen rather than imposed or entirely determined by culturalheritage.The contractual dimension of personal federalism is even more apparentin Messaras description of the consequences that he attributes to the recognition of the principle of personality. This principle implies, like co-ownership,a clear psychological perception of the boundaries of the system and the willingness to respect these boundaries pursuant to the basic principle of any consensual model: Good fences make good neighbours.34 Without a doubt,this evokes the principle of the relative effect of contracts, an observation towhich we would be tempted to add, maliciously perhaps, that the increase inthe worldwide demand for the protection of collective cultural rights creates asituation where, more than ever, no one is bound to remain in indivision, andwhere, in response to this type of claim, a wide variety of arrangements is possible as long as we do not treat, through a sense of false necessity, the respect ofcertain federal forms as a categorical imperative, especially if these forms,unlike others, cannot be described as necessarily proceeding from the idea offederalism itself.Inherent to any analysis of the interaction between federalism and theprinciple of personality, the recognition, rather than the negation, of the contractual potentialities that the concept of federalism underlies, at least virtually,could effectively lead to an enlargement of this concept, as Messara wishes.One question remains, though: in what direction should this enlargementbe pursued? For if, as Fleiner and Messara demonstrate, cultural and ethnic pluralism create constant challenges for federalism, it does not follow that any particular kind of legal pluralism should result. Indeed, a given ethnic group mayvery well seek to affirm its existence or difference within the normative framework provided by the state without attempting to remove itself from that framework. Such a group could also try to convince the state to grant it a largermargin of normative autonomy by consenting to certain jurisdictional accom33.34.

Ibid. at 228-231.Ibid. at 232.

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modations on questions perceived as essential to its survival or its flourishing, a

process which could eventually lead to the establishment of an asymmetricalform of federalism, such as that envisioned earlier by Delpre and Verdussen.But even then, would this really be legal pluralism, strictly speaking? Actually,if it is, this form of legal pluralism would not be radically different from thatwhich any federal regime comprising at least two levels of government necessarily implies. So, at best, we could only speak of a weak form of legal pluralism.Inquiries of this nature bring to light a variable that cannot be ignored inthe context of a reflection on federalism. This variable lies in the relativedecline of the nation-state and of the corollary concept of sovereignty.35 Fromthis double decline flows a complexification of the processes of elaboration,interpretation and application of norms as well as a multiplication of the number of norm-producing entities. This question points our inquiry towards thehypothesis of a de-statization of the reflection on federalism, which wouldprecisely be an attempt at taking into account the decline of the normativemonopoly enjoyed by the state since the advent of modernity and the emergence (or re-emergence) of private actors capable of enacting legal norms onmatters that, until recently, could only be grasped from the standpoint of publiclaw. So, can we imagine a reflection on federalism that would take stock of thereality of legal pluralism, and consider the state as one potential federative actoramong others? For example, would it be possible to envision a retheorization offederalism on the basis of a study of the partnerships formed between publicadministrations and private entities with respect to the provision of publicservices? Such a question could never be answered without consciously weaving the theory of federalism and legal theory together, and without looking todeepen our understanding of the nature of federalism in the future. Thus, bearing in mind the growth in the number of potential norm-producing entities, itbecomes more important than ever to ask ourselves the following question:Who are we federating and how?It is here that Roderick A. Macdonald, of the Faculty of Law of McGillUniversity, enters the scene with his Kaleidoscopic Federalism. His contribution perhaps constitutes the most ambitious and scathing of the book. It bringsinto question just about all of the boundaries that have been imposed upon thereflection on federalism in the past 150 years or so, both in law and in politicalscience. In effect, Macdonald first and foremost holds out federalism as ametaphor which allows us to understand how citizens structure, in all fieldsof human activity, their relationships with each other, how they realize theiraspirations, and how they conceive and configure their multiple identities.35. Note that the recent emergence of new federal states as well as the processes of federalizationthat are currently at work in certain countries and regions prompts questions as to whether,at the end of the day, the concept of sovereignty itself, in its traditional Westphalianunderstanding, still allows for the adequate apprehension of the structures and dynamics ofgovernance that prevail in contemporary federations.

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Before arriving at this conclusion, Macdonald systematically deconstructs a series of received ideas on federalism that are perceived as givensrather than as constructs. He first challenges the motives which are generallyput forward as inspiring federalism in the traditional literature. Questioning theinfluence of these classic ideal-types that are aggregative federalism anddisaggregative federalism, Macdonald suggests that, in essence, all federalismresults from and bears within itself the two tendencies. It is as if both Eros andThanatos influenced federative dynamics, with the result that all federalismgenerates its life instinct and its death instinct. From this perspective, secessionist projects merely represent attempts at re-federating on the basis of a newagreement, if the partners are the same, or, if they are different, at reconnectingancient ties woven into the context of what Macdonald calls implicit confederations.36 As such, he argues:[R]egardless of whether an aggregating or a disaggregating motif predominates inconstitutional mythology, all federal projects are, at several levels, reconstitutive.Be the social, economic, and political impulses driving a federal project integrativeor devolutionary, for every explicit set of political institutions being established,there are a like number of explicit political institutions being destroyed or disabled.More than this, in every case an explicit federal project not only leads to thecreation of new political institutions, it spawns several new implicit political institutions that carry the traits of these newly created federal units. Finally, just as newimplicit political institutions are being generated or enhanced, so too multipleimplicit political institutions are being destroyed or attenuated.37

Macdonald next addresses the gap between the aims originally assignedto federalism by those who see it as a valuable mode of state organization andthe treatment of these goals by the classical theory of federalism. In this respect,he notes that this theory, which acknowledges the existence of several types offederations, conceives of federalism as implying no particular substantive content and therefore depicts it as a mere mechanism by which power is stratified.Macdonald believes, however, that the particular stratification of power thereinencoded reflects an archaic conception of political governance which is that ofthe law and order state, that is, a Lilliputian state. He laments that, because ofthe gradual taking over of multiple social functions by the state since the nineteenth century, a perception has been established that the offer of serviceslinked to these functions must always follow the exact lines of the constitutive36. Such was, for example, the case of the project of sovereignty-association of the first government of the Parti Qubcois in Quebec. This seems to be the case as well of the reorganization of relations between the Basque community and the Spanish state, advocated by theBasque government. See GOBIERNO DES PAIS VASCO Propuesta para la Convivenciaen Euskadi, Discurso del Lehendakari en el Pleno de Poltica General, 26 September 2003,on line: <www.lehendakari.euskadi.net/r57-563/en/contenidos/informacion/declaraciones_lehend/es_509/debate_pol_260903_c.html>.37. R.A. MACDONALD, Kaleidoscopic Federalism, in chapter 7, at 267.

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logic of the state, which is essentially one of territoriality. This explains the factthat political geography incrementally came to dictate the parameters of thereflection on federalism. This result is highly problematic because human interactions tend to be governed by a non-territorial logic.The classical theory of federalism further appears, to Macdonald, to beoutdated even where it confines itself within state-centered parameters. In fact,he observes that in conceptualizing this stratification of power only in light of adivision of this power between two levels of government envisioned as the onlylegitimate constitutional actors, classical federal theory reaches an impasse atthe multiple sites of expression of the federal principle. However, according tohim, the scope of the federal principle cannot be reduced to the sole relationshipthat exists between the federal power and the federated powers because thefunctioning of all of the branches of the state, including the executive and thejudiciary, reflects diverse applications of that principle. And if this confinementof the federalist analytical grid to the relationship between federal and federatedgovernments appears regrettable to Macdonald, it is all the more so when itoperates through the intervention of an analysis which only addresses thepathologies affecting the functioning of federations. Quite frequently in thefield of law, and especially so in the common law tradition, analyses thatassimilate the law of federalism with what courts say about it obscure a largepart of the life of juridical federalism, where the role of cooperation, whichexpresses itself formally as much as it does informally, is as important as that ofconflict. Macdonald further points to the urgency of considering the multiplicity of normative sources and the diversity of governance mechanisms so as toallow for recognition of the several federalisms that have currency within thestate.But if lawyers are often blind to the diversity of the expressions of thefederal phenomenon in the context of the state, they are even more so to thatexisting beyond the state. Looking at federalism, this time directly, through thelens of legal pluralism, Macdonald uses as the premise for his argument thecontingency of the state as a potential locus of federalism. Viewed from thisangle, rather than being treated like a constant in the federal equation, the statebecomes nothing more than a variable. Macdonald admits that his thesis flies inthe face of republican legal theory, on one hand because it rejects the centralityof the state implied in this theory, and on the other because it challenges itshomogenizing prejudice. In effect, for Macdonald, who on this point joinsMessara, federalism is the normal condition of human interaction, and italways has been.38 However, such a perspective presupposes emancipationon the part of the theoretician vis--vis the dictates of a disembodied andjuri-centric constitutionalism.38.

Ibid. at 263.

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Following, to a certain extent, in the footsteps of Johannes Althusius,39

Macdonald maintains that federalism does not lie only in the state. It can befound in the family, in the workplace, in professional associations or inbusiness corporations. Furthermore, federalism is something that is lived. Sothe norms which express its underlying values are also, in the image of lifeitself, shifting, flexible, interstitial. Federalism is often territorial, but a particular structure of governance need not be territorial to assert its federal nature.Federalism is also often relational, whether it is to affirm or negotiate anidentity, to structure economic relations, or to circumscribe the parameters ofan identification process. However, territorial and relational models both seemto take as given that federalism implies a relationship with the Other. In fact,federalism, be it territorial or relational, offers to all communities a means ofinventing an Other for themselves. In this sense, these models only envisionfederalism from the perspective of a community, real or imagined, definedin relation to others. To Macdonald, this ignores the most authentic form offederalism, i.e. psychological federalism, which emanates from individualsthemselves:The truest federalism is a psychological federalism that decomposes not politicaland anthropological affiliations, but legal subjects themselves. Critical theoriesof legal pluralism not only model the diverse motifs, ambitions, sites, and modesof federalism that compete for citizen engagement, but also acknowledge thelaw-generating capacity of the legal subjects. A legal subject is himself or herselfa site of law; and once a site of law, a legal subject is necessarily a federation.40

Macdonald emphasizes the federative potential inherent in the relation

that an individual nurtures within himself rather than one which depends oncommunity. This potential is neglected by all other conceptions of federalism,including personal federalism, because they privilege certain identities to thedetriment of other competing identities. It is therefore not surprising that psychological federalism rejects all forms of nationalism. Indeed, under that view,the appropriation of identity presupposed by nationalism unduly mangles thecomplex identity-based fabric of every individual. However, Macdonald doesnot explain how to understand the free and enlightened choice of individuals tovoluntarily reduce their identity-based potentialities in privileging a given identity over others that are equally available to them.4139. J. ALTHUSIUS, Politica. An Abridged Translation of Politics Methodically Set Forth andIllustrated with Sacred and Profane Examples (trans. by F.S Carney), Indianapolis, LibertyFund, 1995.40. MACDONALD, supra, note 37, at 275.41. Neither does he elaborate on the theoretical problem that a purely subjective understanding offederalism raises, like that which appears to motivate his psychological federalism. If federalism is a purely subjective construction, does everything and nothing not become federalism?A similar remark could be made about the legal pluralist framework that he uses to grasp thephenomenon of law. His legal pluralism is not only critical, but it is also, and maybe above

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Thus, for the external approach that inspires competing models of federalism, psychological federalism proposes to substitute an internal approachcentred on the individual.42 In this vein, [b]y imagining law as a mode ofgiving particular sense to particular ideas in particular places, legal pluralismshifts the inquiry towards thinking of law as meaning, not machinery (as aspiration, not structure; as narrative, not norm). In this construction of meaning,the metaphor of federalism is most appropriately a metaphor of mtissage.43But the locus of this mtissage is no longer a community of any sort but theindividual himself, to whom Macdonald seems to assign the task, that somewould describe as Sisyphean, of constantly conceiving of himself as an Other.44In this sense, the destiny of psychological federalism is to transform itselfinto a kaleidoscopic federalism, a federalism that focuses more on the actualdeployment of social and political power, than on abstract questions of whomight, in theory, possess it.45Macdonalds text thus seeks to explode the idea of federalism. It does so,first, by emphasizing liberty rather than authority,46 in a manner akin toProudhons47 anarcho-federalism and in contrast with that which underpins theclassical theory, then by using the concept as an interpretive paradigm forseveral types of relations which, seen from the perspective of legal positivism,would have been relegated to non-law or, at best, to infra-law.48 That beingsaid, even from a positivistic point of view, we cannot exclude the hypothesisthat federalism, once relieved of the limits imposed by the classical theory,could be used as an autonomous legal concept, just like other legally recognizedautonomous concepts such as, say, contract or property. This raises thefollowing questions: What if a retheorized federalism managed to serve asa legal framework for certain private law or public law relationships which

42.

43.44.45.46.47.48.

all, radical in the etymological sense of the term, and it is certainly not giving into the ontological temptation to note it. Indeed, behind these attempts at giving a radically subjectiveaccount of both law and federalism, some might see a way of ensuring the hegemony of juristson these objects of research, and this to the possible detriment of an eventual transdisciplinarydialogue. Thus, the problem is as much epistemological as it is ontological.We could just as easily speak of a realist approach going from the bottom up replacing a theoretical approach going from the top down. See M. BAKUNIN, Statism and Anarchy, trans. byM.S. Shatz (Cambridge: Cambridge University Press, 1990) at 198ff.MACDONALD, supra, note 37, at 277-278.This formula is inspired by the title of P. RICURs famous book Soi-mme comme un autre(Paris: Seuil, 1990).MACDONALD, supra, note 37, at 278.See M. CROISAT, Le fdralisme dans les dmocraties contemporaines, 3rd ed. (Paris:Montchrestien, 1999) at 17.P.-J. PROUDHON, Du principe fdratif et de la ncessit de reconstituer le parti de larvolution (Paris: Librairie Marcel Rivire, 1951).Jean Carbonniers concept of infra-law designates the positive phenomena that can beattributed a juridical nature, but which are treated as a degraded or imperfect form of lawbecause they do not emanate from the state (i.e., workplace customs or folkloric law). SeeJ. CARBONNIER, Flexible droit. Pour une sociologie du droit sans rigueur, 8th ed. (Paris:L.G.D.J., 1995) at 24.

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currently stand at the margins of officially recognized legal categories? What

if the concept of federalism designated first and foremost an interpretiveparadigm?This appears to be the vision of Nicolas Levrat of the European Instituteand the Faculty of Law at the University of Geneva. In his contribution entitledThe European Union: An International Federation, Levrat argues that theevolution of the European Union conforms to a resolutely federalist logic.According to him, while the application of the federal label to Europe wasscrupulously avoided, it remains that the process of European integration hasmore to do with the construction of a composite state, founded on a sharingof sovereignties in a structure of a federal type, than it has with the mereevolution of international relations between states.49 Although Levrat speaksof a federal type structure, he does not go as far as to speak of a federal state.Thus, would federalism be possible without a state, or outside of it? Like othercontributors to this book, Levrat believes so.With regards to the European Union, he believes that the constitutiveprocesses, as much as the mode of functioning or the institutions created toadministrate the Union, reflect a federalist logic. On one hand, independentlyof the project of endowing Europe with a constitution formally bearing thatname,50 the constitutive process of the European Communities and subsequently of the European Union bore very early on the mark of federalism, evenif the idea of creating an actual state was rejected by most. In effect, thetreaties that laid the foundations of the European Union quickly took on anobvious constitutional dimension: first, by taking primacy over the internallaw of member states in their field of application; then, by establishing fairlyconstraining amending mechanisms to make them more stable; and above all,by leading to the creation of a new and autonomous legal order, different fromthat of the member states. All of these elements, according to Levrat, clearlyreveal the presence of a federalist constitutional logic. Furthermore, the relationship established between Europeans and the community administration,which is characterized by their interaction with multiple institutions, alsoreflects a federalist logic. The operative criterion here, which addresses thedirect character of this relationship, is explained as follows:If the composition and the functioning [of the federal power] depends solely onrelations between member states, without direct legitimization by individuals, weremain in the domain of international cooperation, even if it is pushed to the stagelabelled in the literature as one of integration. If, on the contrary, individualsdirectly participate in the legitimization of organs or institutions of the centralpower, the system leans towards federalism, even if it ought not be forgotten that49. N. LEVRAT, LUnion europenne : une fdration internationale in chapter 8, at 287.50. R. DEHOUSSE, ed., Une constitution pour lEurope ? (Paris: Presses de Sciences Po, 2002).

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the principal feature of federalism is precisely to preserve a capacity for the

participation of constituent entities in the central power, rather than to constitutethe population of the federal entity as a source of exclusive and immediatelegitimization of the central power.51

To the extent that the community legal order creates rights that citizens canexercise directly against their state, the relationship established between themand this community order becomes immediate. Each time European citizensexercise the rights which community norms confer on them, they legitimizethese norms and the legal order that they put in place.52 The question of the linkexisting between Europeans on an individual level and the central power, asLevrat calls it, however, is more complex, and it is perhaps here that the uniqueness of European federalism, which is, as has been noted, without a state, is mostobvious. The principal community organs are composed of representativesnamed by member states and not through some community-devised mechanism. Moreover, the constant involvement of member states within the organsof the European central power and the corollary absence of an autonomouscentral power (which should not be confused with the autonomous Europeanlegal order), entail that a strict sharing of powers is not absolutely necessary. It isin this framework that a unique model reminiscent of a federation of federations emerges. Such a model, it is to be noted, is necessarily asymmetricalbecause not all members of the Union have a federal structure. A federal modelso unique and complex, Levrat concludes, can only enrich the theorization offederalism.So, without being a traditional state-based federation, the EuropeanUnion would remain a federation cognizable by public law. Could it beso because of its adherence to federalist values? Could federalism as a legalparadigm be first and foremost about values and aspirations as opposed tostructures and institutions? It is easy to imagine the consequences of suchan approach on the theorization of federalism. On one hand, the importanceof formal structures as the natural focal point of comparative studies wouldimmediately be diminished. On the other hand, the incessant, and often Byzantine, taxonomic exercises, founded almost exclusively on the examinationof the formal structures of a given entity, would lose some importance to thebenefit of an approach centred on the identification of federalist dynamics andlogics, and, as we shall allude to later, on the possibility of a legal ethics of federalism. Whatever the possible outcomes of such an approach, the question ofits relevance and of its sustainability is now posed.

51. LEVRAT, supra, note 49, at 297-298.

52. On the concrete legitimization of normative systems, and more particularly of constitutions,through the use made of them by citizens, see J. RAZ, On the Authority and Interpretation ofConstitutions: Some Preliminaries, in L. ALEXANDER, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998) 152 at 173-174.

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III. Representation, Values, and Dispute Resolution

Even if we agree with the hypothesis that federalism is primarily a matterof values and aspirations rather than formal structures, these values and aspirations of a federation are not always as clear as could be hoped and even if theywere the subject of consensus, tension would continue to surface from time totime. On one hand, even where they are consented to, their interplay could stillresult in conflict. For example, if we postulate that loyalty and autonomy constitute federal values that can be treated as legal standards,53 we need to recognize that while these two values are not necessarily antithetical, they can oftencome into opposition. On the other hand, the values and aspirations inherent tofederalism sometimes conflict with other imperatives which, without necessarily being foreign to federalism, are nonetheless not inherent to it. Then it is federalism itself that ends up competing with such imperatives.Moreover, it should be borne in mind that beyond being a tool for themanagement of a plurality of identities, federalism also provides a means ofadministrative rationalization which presupposes the pooling of resourcesin the name of achieving a collective ideal. It responds, in this sense, to socioeconomic rationales which demand that particular collective identities be surpassed, but not negated, and that local egotisms be abandoned. Paradoxically, ifthe integration of these rationales in public policies is likely to offend substatenationalities or regional identities, this integration, when realised in a transparent and democratic manner, may also lead to the emergence of a new identityforged in a way that takes into account cultural, social, economic and geographic dimensions. One can surmise here that to ensure its legitimacy, if not itssurvival, a federation should be able to generate, by itself, a new and complexidentity. The question of economic integration, notably in Europe, illustratesthe many processes which are at work. How to create a market that is as free aspossible while guaranteeing an equitable redistribution of resources amongstindividuals, as well as regions? How to distribute state functions in light of thatobjective? How to engender the support of citizens and, in so doing, legitimizethe actions of the central government? In short, how to reconcile functionality,solidarity and legitimacy?Evoking the problems of legitimacy arising out of the adoption ofpolicies based solely on economic rationales raises the unavoidable issue of53. It would be difficult to maintain the contrary, federal loyalty or fidelity being recognized assuch, first in an explicit manner in the formal constitutions of certain federations (for examplein Belgium, and, to a lesser degree, in South Africa) and in an implicit way as a result ofjudicial interpretations of the federal principle, the most obvious case being that of Germany.For its part, autonomy, though relative, is at the heart of the idea of shared internal sovereigntywhich underlies federalism and which, in all federations where the rule of law is respected, isthe object of judicial control in one form or another.

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governance within federations, and more specifically, of the relationship between the centre and the regions. How are jurisdictions distributed between thecentral government and the federated entities? In other words, how is internalsovereignty exercised? Are powers separated by watertight compartments, orare they shared or exercised jointly? What are the virtues of normative competition compared to the virtues of normative harmonization? By what mechanismscan such harmonization be implemented? In a broader sense, how should wegrasp the normative entanglement that characterizes federal regimes or regimeson the road to federalization? What are the respective roles of law and politicsin the resolution of jurisdictional conflicts? What are the virtues, if any, ofconstitutionalizing political obligations to negotiate in good faith incumbenton both orders of government in certain federations? All of these questions,which deal as much with the concretization of the values and aspirations inherent to federalism as they do with situations potentially generating tensions, orwith mechanisms for the prevention or resolution of conflicts, are the object ofthe third part of this book, entitled Representation, Values, and Dispute Resolution.

Certain dynamics or situations tend, more than others, to catalyze or, at

least, to crystallize conflicts pertaining to federalism. This is the case with thecontemporary dynamics of globalization, which is often perceived as providingsubstate nations with the opportunity to assert themselves on the internationalscene. The concept of a Europe of regions, and the corollary institution of aCommittee of regions at the European Union level, tend to support this view.But how are pluri- and supra-nationality envisaged at the international level?What is, from this standpoint, the situation of federated entities? What role dothey play on the international scene, and more importantly, what role couldthey, and should they, play? From the perspective of a comparative analysis ofthe domestic law of each federation, what tendencies can be observed regardingthe recognition of the legitimacy and of the constitutionality of the internationalaction of federated entities? Finally, should the difficulties faced by certain federal states in their attempts at implementing international norms lead to afull-fledged re-examination of the international legal status of federated entities? Beyond considerations linked to the effectiveness of international law,this line of inquiry calls into question one of the ultimate objectives of federalism, i.e. unity in diversity, and, in this sense, reaches the core of the federaldynamic, which is founded on the division of internal sovereignty. This raisesthe question of how to reconcile the objective of achieving a better integrationof international norms, which, from an internal constitutional perspective, creates problems of functionality, with the objective of respecting the relativeautonomy of federated entities, which, from the same perspective, spills overfrom the functional into the symbolic realm. To make sense of this conundrum,examining a few concrete cases should be enlightening. This is the task Armand

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de Mestral, Annemie Schaus, and Rainer Arnold have taken up. In their contributions to this book, these three authors deal with both the integration of international or supra-national norms in federal states, and the paradiplomacypracticed by some federated entities.54What if a federal constitution is silent as to the possibility that federatedentities might act on the international scene? This is the question Armandde Mestral, of McGill University, addresses in his text entitled The Provincesand International Relations in Canada. He does so by focusing on Canada,which represents an archetype of such a constitutional model. Observing thatdomestic law alone cannot satisfactorily respond to the question of whetherprovinces can be actors on the international scene, de Mestral remarks that[t]he gradual emergence of a provincial role in international relations has beenthe result of developments both in international law, allowing provincial actorsupon some parts of the international stage, and in domestic constitutional lawand practice, allowing the provinces to assume such a role.55A constitution which is silent or insufficiently explicit inevitably leads toan opening of the internal legal order towards the international legal order. Thisopening presents, nonetheless, a paradoxical dimension since international lawrefers, as a general rule, to the domestic law of each federation in judging thelegal capacity of federated entities at the international level. In that respect,Canadian law establishes a crucial distinction between the respective roles ofthe executive and legislative powers for the purpose of determining the spaceavailable to provinces in this federation. Thus, if the federal government, i.e.the executive, maintains that it alone possesses the prerogative to representCanada on the international scene and to conclude agreements recognized bypublic international law, this power does not necessarily extend to the implementation of such agreements. On one hand, because Canada is a dualistjurisdiction with regards to the integration of conventional international law,the federal government needs Parliaments collaboration to ensure that thenorms to which it has consented are properly integrated into the domestic order.On the other hand, Canada is a federal jurisdiction and, as such, problems mayarise where the obligations contained in a treaty or convention relate to a subject which, in domestic law, falls under provincial jurisdiction.The question was resolved by the Judicial Committee of the Privy Council in the famous Labour Conventions Reference,56 where it was decided that54. The concept of paradiplomacy refers to the development and deployment by a substateentity of a particular foreign policy. See S. PAQUIN, Paradiplomatie identitaire et diplomatie en Belgique fdrale : le cas de la Flandre, (2003) 36:3 Revue canadienne de sciencepolitique 621.55. A. de MESTRAL, The Provinces and International Relations in Canada, in chapter 9, at311.56. Canada (Attorney General) v. Ontario (Attorney General), [1937] A.C. 326 (P.C. Canada).

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although the conclusion of international agreements and treaties falls under thefederal governments jurisdiction, this government cannot claim an absoluteconstitutional monopoly over the implementation, in domestic law, of obligations arising out of international treaty law. To the extent that a treaty or convention relates to the exclusive jurisdiction of a Canadian province, only thatprovince can implement it, and neither the federal government nor the federalparliament may legally constrain the province to enforce it. The participation ofthe provinces would also be solicited where the treaty or convention related totheir jurisdiction as well as that of the federal parliaments. De Mestral underscores the fact that [t]he Government of Canada has had to content itself with asituation where it must cooperate with the provincial authorities before, during,and after a treaty negotiation if it is to be able to guarantee full and faithfulimplementation of a treaty, whose subject-matter falls within both federal andprovincial, or within exclusive provincial legislative jurisdiction.57 He addsthat, despite its lack of formal expression in explicit norms, this forced cooperation, for the most part, comes about reasonably smoothly and, above all,without constantly engaging Canadas international liability for the failure ofone or more provinces to discharge international obligations in their fields ofjurisdiction.It bears noting here that this observation demolishes the theory to which amajority of English-speaking Canadian scholars have long adhered, whichholds that the strict application of the constitutional division of legislativepowers in the execution of international conventional norms would be a majorimpediment to the efficacy of the international action of the Canadian federation and to the flourishing of Canadas international personhood. Indeed, thisthesis seems awkward in that it obscures the concrete results that flow from theimplementation of the legal framework at issue. Thus, the variable representedby the gap existing between the potential impact of formal law and its realimpact is ignored, and, in this vein, abstract law comes to take precedence overapplied law in the representation of the normative forces in play.As a consequence, this theory also fails to recognize the porous nature ofthe boundary separating formal law from politics, which can be viewed asthe locus where a type of interstitial constitutionalism materializes, for itis precisely that type of constitutionalism that we are talking about, a constitutionalism where the silences of the constitution are hermeneutic intersticessusceptible to all sorts of normative appropriations. The advantages gainedby actors from this constitutional vagueness explain in part their reluctance toformalize their relations to a greater extent. It is also possible to argue, according to de Mestral, that from these relations has emerged an unwritten, customary, or conventional constitution which crystallizes, to a certain extent, thepolitical and legal status quo on the matter. The second half of de Mestrals57. De MESTRAL, supra, note 55, at 314.

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paper, which deals with the paradiplomacy of Canadian provinces, demonstrates over and over again that these provinces, and especially Quebec, havetaken advantage of this lack of precision to cultivate a field of their own onthe international scene, in spite of having to live with a certain amount ofuncertainty as to the (variable) degree of federal tolerance likely to meet theirinitiatives.The constitutional status of Belgiums federated communities and regionsis, at first glance, very different from that of the Canadian provinces withregards to the jus tractatus. It is as if the silence of Canadas formal constitutionwas met by the resounding declarations of its Belgian counterpart. However,Annemie Schaus, from the Universit libre de Bruxelles, demonstrates in hercomparative study, entitled The Implementation of International Obligationsin a Federal StateThe Cases of Belgium and Canada, that despite certaindifferences between the formal constitutions of the two federations, the modusvivendi governing relations between the federal level and the federated entitieswith regards to the implementation of international conventional obligations isstrangely similar from one federation to another.The most obvious of these differences lies in the expressly recognizedpower of the Belgian communities and regions not only to execute, but also toconclude treaties in areas over which they possess constitutional jurisdiction.Despite this significant difference, however, the fact that the execution ofinternational obligations sometimes requires the cooperation of all levels ofgovernment necessitates, as in Canada, cooperation between the governmentsconcerned.But what happens if, after having concluded a treaty with a foreign state,a Belgian community or region fails to discharge, in its own domestic legalorder, the international obligations to which it consented? To the extent thatinternational law imposes liability for the failure to discharge international obligations on sovereign states, it is, as a matter of principle, federal Belgium thatwould be responsible for the default of one of its federated entities. The situation would not be different in Canada were a province to default on the execution of an international obligation, even if the obligation related to any matterwithin that provinces exclusive jurisdiction: it is Canada, as opposed to, say,Quebec or Ontario, that would be liable from the standpoint of public international law.Conversely, there is a particular instance where the explicit Belgian constitutional regime can be distinguished from the implicit Canadian one. It has todo with the powers ascribed to the federal government for avoiding situationswhere the international liability of the federation would be engaged. WhileCanadian constitutional law does not permit the federal government to constrain, in any manner, a province that refuses to execute an international obliga77

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tion even where there is a risk that Canada will be held liable, the Belgianconstitution allows for a power of substitution in favour of the federal authority in cases of failure to act on the part of federated entities in the implementionof international law norms.58 However, this substitution is temporary becauseit ceases from the moment the federated entity conforms to the relevant international decision. The use of the word decision is not a mere coincidence. Thispower of substitution is indeed conditional: the federal government is onlyauthorized to substitute itself for a defaulting federated entity (1) if Belgium hasbeen condemned by an international or supra-national court of law; (2) if thedefaulting federated entity has been duly given formal notice to abide by theconclusions of the courts decision; and (3) if, from the outset, the federal government has allowed the federated entity to participate in the settlement processof the international dispute in which Belgium was the defendant. Since the constitutional validity of the substitution depends on the federal governmentrespecting these requirements, it follows that cooperation between the levels ofgovernment concerned will be both necessary and unavoidable, as it constitutesan essential condition for the valid exercise of this constitutional power.Therefore, Belgiums explicit constitutionalism leads in practice to aresult which is more or less equivalent to that achieved by Canadas implicitconstitutionalism. On one hand, the two models prevent the federal governmentfrom denying the autonomy of federated entities by claiming a monopoly on theimplementation of conventional international law, as would be authorized bythe American or Australian treaty power. On the other hand, both regimesforce federative actors to be pragmatic and to cooperate in the name of avoidingsituations where the international liability of the federation would be engaged.Almost raised to the status of a categorical imperative, this pragmatism imposesan obligation of moderation on all actors, and, more specifically, on those federated entities which, constantly tempted to expand their presence on the international scene, could end up denying their federal membership to look for aformal consecration of this denial on the international scene. However, asSchaus observes, the taking into account of the autonomy of federated entities,or, more precisely, respect for this autonomy, helps to avoid in the domesticlegal order the conflicts which the complete centralization of international competences would certainly generate. Let us make no mistake, however. The goalis not to achieve greater autonomy for federated entities, but rather to ensurerespect for the federative logic inspiring the division of powers, and this, evenin matters relating to the execution of international obligations.59That said, although the international action of federated entities rarelygoes without creating tensions, these tensions take on a particular dimension if58. A. SCHAUS, Lexcution fdrale des obligations internationales : le cas de la Belgiqueet du Canada, in chapter 10, at 336-337.59. Ibid., at 348.

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the federal state itself becomes party to a process which ultimately involvedceding competences to a new supranational entity whose norms would beimmediately applicable and would take precedence, in cases of conflict, overthose of the constituent states. What place is reserved for federated entities insuch processes? How do, and should, the supranational and the subnationalinteract?In The Voice of Lnder, Regions, and Communities in the EuropeanUnion, Rainer Arnold, of the University of Regensburg in Germany, addressesthese questions in the context that is probably the most telling of all, that ofEurope. Acknowledging from the outset the supranational logic that inspiresEuropean construction, Arnold notes that several domains that were previouslyunder the jurisdiction of the member states are now under that of the EuropeanUnion. Furthermore, as a result of the application of several explicit provisionsand interpretive principles of European treaties, there is a tendency towards theenlargement of community competences.Such an enlargement is of special concern to the federal states that aremembers of the European Union because it takes place in the framework of afundamentally bipolar relation which involves the member states, on one hand,and European institutions, on the other, thus placing the federated entities thatmake up the federal members of the union in a seemingly precarious situation.Moreover, one should not lose sight of the fact that the treaties that transferredpowers to the European Union were, for the most part, adopted without the consent of the federated entities comprised in the member states, even if the treatiesin question were likely to affect their competences. Even more preoccupying,Arnold remarks, is the fact that European regulation is increasingly concernedwith domains which were traditionally under the jurisdiction of these federatedentities. This phenomenon, he adds, also has an impact on regional states suchas Spain60 or Italy,61 where a federative logic increasingly inspires the constitutional dynamics. To borrow Nicolas Levrats words, is the international federation that is currently being constructed in Europe rising to the detriment, andperhaps without the knowledge, of the federated entities which compose someof its member states? Would these entities be losing, through European construction, the level of autonomy they enjoy in their domestic constitutional lawframework?According to Arnold, this problem is taken very seriously in Europe. Itis even possible to discern the emergence of a third level of influence on theEuropean stage, leading us to believe in a possible institutional legitimizationof the concept of a Europe of regions. Indeed, both the internal law of federal60. Eliseo Aja also describes Spain as a state of autonomies. See E. AJA, El estado autonomico.Federalismo y hechos differenciales, 2nd ed., (Madrid: Allianza Editorial, 2003).61. See B. CARAVITA, Italy: Toward a Federal state?, Federations, Special Triple Issue:Themes of the International Conference on Federalism, 2002, p. 25.

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or regional states and community law are beginning to recognize, in federated

entities or regions, a voice in European affairs.On one hand, the domestic law of the member states concerned increasingly allows for the tangible participation of federated entities or regions in theelaboration of the foreign policy of these states in the European context. Formalmechanisms have thus been put in place internally so that the action of states atthe European level reflects the preoccupation of their federated entities. Thisimposed cooperation assumes two principal forms that are founded, on the onehand, on formal procedures of co-decision and, on the other, on obligations toinform or consult which, as a general rule, are more or less constrainingdepending on the autonomy a federated entity enjoys in its domestic setting andon its potential jurisdiction over a given subject. Furthermore, the participationof federated entities in the elaboration and implementation of the federal statespolicy at the European level, on issues falling under those entities constitutional jurisdiction, may go as far as having the federated entities themselvesrepresent the whole federation. In such a case, the federated entity acts as theagent of the federation at the European level, thereby preserving the principle ofthe direct relationship between the Union and its members states. In principle,community law is not opposed to this type of solution where the internal law ofthe federal state allows for it. The determining variable is thus, now and always,the internal constitutional law of the federation or of the regional state involved.As a result, Arnold concludes, the relative agnosticism of community law onthe subject since the creation of the European Union in 1993 gave a signal bothfor strengthening the position of the federal subentities (Lnder/regions) andfor introducing new co-decision systems.62On the other hand, the community institutions themselves are becomingmore open to subnational political entities through the establishment of consultative bodies such as the Committee of regions, which may express views on theimpact of community policies on the internal jurisdictions of federated entitiesand regions. Further, the recognition in European treaties of regulatory principles such as subsidiarity and proportionality is equally susceptible to favouringthe protection, or at least the taking into account, of the interests of subnationalentities in the elaboration of these policies.63 Thus, while the European construction somehow accelerated the centripetal tendencies that already existedin some federal or regional member states of the Union, it seems largelypremature to conclude that the inevitable destiny of the federated entities or ofthe regions making up these states is to fall into oblivion as a result of thatconstruction. In this sense, the concept of a Europe of regions is not as lifelessas may have been thought.62. R. ARNOLD, The Voice of Lnder, Regions and Communities in the European Union, inchapter 11, at 356.63. With regards to the principle of subsidiarity, Arnold notes that, for the moment, it has beenrelatively ineffective at the legal level, operating more as a principle of political prudence.

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If there is one conclusion that can be drawn from de Mestrals, Schauss,

and Arnolds contributions to this book, it is that the fears generated, in certaincircles, by the international action of federated entities are largely exaggerated.Recognizing in these entities a limited constitutional competence pertaining tothe jus tractatus and legitimizing, de jure or de facto, their paradiplomacy hasnot led to the chaos that some anticipated and neither has it paralysed theinternational action of federal states where such paradiplomacy is not formallyprohibited. In fact, by forcing federative actors to exchange information, toconsult with each other, and finally to cooperate, the legitimate internationalaction of federated entities can be perceived as upholding the values of diversity and unity inherent to federalism. However, this only holds to the extent thatall actors act in good faith. For instance, a federal state that would systematically frustrate the international aspirations of its federated entities even wherethese aspirations are linked to the exercise of their constitutional jurisdictionsand are expressed in conformity with domestic constitutional law, could be heldto be acting in bad faith. The same would be true of a federated entity not constitutionally prohibited to act on the international scene, but which would takeadvantage of this possibility to launch a foreign policy that would ignore thefederal logic meant to inform its action. Even though they respect the letter oftheir federations constitution, or lawfully make use of its silences, federatedentities should not claim to be what they are not, that is, sovereign states.Furthermore, even if one accepts that a certain level of intergovernmentalcompetition is beneficial within a federation and that this competition canbe manifested internally as well as externally, federated entities could notlegitimately, and lawfully, launch a foreign policy that seeks to jeopardize theinterests of the federation as a whole or use such a policy to advance causescontrary to the basic requirements of federal loyalty.Federalism implies tension, in the international realm as much as in thedomestic one. This tension can be managed in a constructive manner, but it canalso lead to litigation. As demonstrated by the diverging views on the optimalconstitutional framework to be implemented in respect of the division ofpowers relating to international relations, such litigation often opposes theinherent and sometimes contradictory values of federalism against other kindsof imperatives of a more instrumental nature. Will courts responsible forresolving these disputes favour certain values to the detriment of others? Threeauthors address this question. Andre Lajoie and Jean Leclair, of the Universitde Montral, both consider it in light of the Canadian experiment, while Richard Cornes, of the University of Essex, examines it in the context of the devolution process launched a few years ago in the United Kingdom.Adopting the broadest approach of the three, Lajoie wonders, in hercontribution entitled Ensuring the Integration of Minority Values in the Law:An Impossible Task Through the Structural Path, whether the administrative arrangements structuring the judicial branch allow for the integration in81

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Canadian law of the values of political minorities, that is, those minorities thatare characterized by a culture, a language, or a system of law distinct from thatof the majority and, we could add, for which relations with the state are oftenmediated by a primordial belonging, to use the expression of Clifford Geertz,to a particular political community. To a certain extent, such an inquiry, theparameters of which transcend the Canadian context, puts federalist theory tothe test, by examining how the federalist ideal of reconciling unity and diversityis actually implemented.Lajoie reaches a rather pessimistic conclusion on the outcome of such anenterprise in the Canadian context. According to her, the judicial integrationof minority values depends not on the administrative arrangements of thestructures of judicial power, but rather on the eventual superimposition of theseminority values with dominant social values at a given moment.64 She thuscomforts the thesis put forward in the 1980s by American critical race scholarDerrick Bell, who argued that the progress achieved through judicial means bythe Afro-American minority since the 1950s is for the most part explainable bya convergence of minority and majority interests at the time,65 the subtext ofthis theory being that the about-face effected by the United States SupremeCourt in Brown v. Board of Education66 was only possible because the majorityhad a personal interest in the outcome then reached.But let us return to Lajoies demonstration. The first part of her studydeals with certain institutional guarantees which, we might think, should favourthe integration of minority values in positive law. These guarantees pertain tobilingualism, bijuralism67, the territoriality of the judicial system, and somelevel of geography-based input in the appointment of judges. According to her,however, there is much less substance in these guarantees than would appear.With regards to bilingualism, she deems constitutional guarantees such as thosepermitting individuals to express themselves and be notified in French orEnglish in the context of judicial procedures to be more closely linked tobasic fairness than to the protection of minorities strictly speaking and mayeven denote a certain condescension [which] does not guarantee that [their]claims will be heard, much less [their] values recognized.68 With regards tobijuralism, Lajoie is again very critical. To the extent the efforts made in thisfield are concerned only with private law categories, the impact of bijuralism onthe legal integration of minority values can only be negligible. In this sense,64. A. LAJOIE, Garantir lintgration des valeurs minoritaires dans le droit : une entrepriseirralisable par la voie structurelle, in chapter 12, at 372.65. D. BELL, Brown v. Board of Education and the Interest-Convergence Dilemma, (1980) 94Harv. L. Rev. 518.66. Brown v. Board of Education, 347 U.S. 483 (1954).67. The concept of bijuralism refers to the idea of a co-existence and sometimes an interactionbetween two legal traditions within a single jurisdiction, for example, civil law and commonlaw in Canada.68. LAJOIE, supra, note 64, at 368.

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while laudable, such a project cannot hope to harmonize the irreconcilable differences that arise in the interpretation of the federal division of powers, anunavoidable reality that reflects a conflict between cultures as well as a powerstruggle, and that public law must manage.69 Finally, the territorialization ofthe judicial system in order to facilitate the recognition of minority interests andvalues fares no better in her estimation. Indeed, despite the constitution of anintegrated system of provincial and federal courts in Canada and the fact that,on the face of it, the judicial territorial autonomy of the provinces is preserved,Lajoie believes that the way this system functions actually sterilizes the formalguarantees that it offers elsewhere. In her view, this functioning renders illusorythe idea of a true judicial territorial autonomy in Canada. She further argues thatQuebec, a civil law jurisdiction in most private law matters, is disproportionallyaffected in that regard because of the composition of the Supreme Court of Canada, which includes a majority of common law judges, as well as because thiscourt acts in all matters as the ultimate appellate tribunal for the entire country.This leads her to conclude that any notion of autonomy in the interpretation ofthe civil law thus becomes a fiction.70In the second part of her study, Lajoie examines the reception given bythe Supreme Court to the political and economic claims of Aboriginal peoplesand of Quebec. She notes in this regard that in both cases the Court is almostuniformly hostile to claims aimed at increasing political power (selfdetermination, control of territory likely to bring into question Canadian sovereignty over that territory) while it shows itself to be reasonably receptive to economic claims (economic self-sufficiency having very little impact on otheractors). She concludes that the integration within positive law of the values of apolitical minority through judicial means rests on three conditions: (1) theadvantages claimed by such a minority must not conflict with dominant values;(2) these advantages must not threaten the interests, especially economic ones,of the majority; (3) the favourable power dynamics enjoyed by a minority at agiven time will positively impact on the legal reception of its values and interests. Such a conclusion, Lajoie observes, does not bring into question theimpartiality of the Supreme Court of Canada, but merely demonstrates theinfluence of dominant values, generally held by the majority, on judicial interpretation.7169. Ibid., at 369.70. Ibid., at 372.71. It should no doubt be added that top courts naturally tend to protect the state that created themagainst claims so radical that they threaten its cohesion, its unity, and its sovereignty. See A.BZDERA, Comparative Analysis of Federal High Courts: A Political Theory of JudicialReview, (1993) XXVI:1 Canadian Journal of Political Science 3. That said, the meansemployed to achieve this do not keep the court from making certain concessions to theseclaims. Consider, in Canada, the Reference re Secession of Quebec, [1998] 2 S.C.R. 217,where the Supreme Court refused to read a constitutional silence as rendering any provincialsecession impossible.

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In short, she holds that in order to understand the behaviour of a tribunal

like the Supreme Court of Canada, it is necessary to examine the whole range ofinterpretive activities rather than to limit the scope of the inquiry to judicialinterpretation in the strictest sense. The theoretical perspective that informs herinvestigation is that of contemporary hermeneutics. To the extent that the influence of this important theoretical current in the literature on federalism is stillmarginal,72 it is appropriate, at this juncture, to reproduce Lajoies summary ofit:From this theoretical perspective, the judicial production of law flows from theinteraction between, on one hand, a judge/interpreter, armed with a personalfilter, and an analytical grid which is a product of his or her personal values, and,on the other hand, an interpretive community to which he or she belongs. Furthermore, the judicial production of law results from a norm that the judge interpretsin context, by way of narration, under the influence of the overdeterminationexerted by textual and historical horizons such as they are expressed in theexpectations of audiences that are both universal and specialized.73

But can hermeneutics alone allow for an evaluation of the interpretive

product? Indeed, the criteria on the basis of which this evaluation is performed,once the relevant information has been treated, are by no means obviousand unequivocal. For example, treating this information in light of the victory/defeat dichotomy to determine whether the values of a minority have beenintegrated or not into positive law through a judicial intervention, presupposesan almost homogeneous identity on the part of the loser as well as a certain uniformity in its values and in the loci where they are expressed. For instance,when we say the values of Quebec have been defeated at the Supreme Courtin commenting on a blow dealt to the government of Quebec in a matter concerning the division of powers, do we not find ourselves, on one hand, establishing a necessary parallel between Quebec values and the position of itscurrent government, which is questionable,74 and on the other hand, suggestingthat those values could never be promoted by the federal government, which isalso questionable, and finally, conceiving of Quebeckers as united by somekind of mechanical solidarity? Envisaged from the perspective of a federalisttheory which aims at reconciling unity and diversity, isnt such an approachontologically biased against the unity side of this pair as a result of the representative monopoly on identity attributed to a particular level of government, inthis case the provincial level?72. Hermeneutics, in its different forms, occupy an important place in legal theory, notablythanks to Ronald Dworkin and Stanley Fish in the Anglo-American world and to ChaimPerelman, Grard Timsit, and... Andre Lajoie in the francophone world.73. LAJOIE, supra, note 64, at 379-380.74. Can the values of an entire group be systematically equated to those to which its legitimate,but temporary, representative adheres to? Sometimes yes, sometimes no, for sure. Whateverthe answer to this question, however, the possible reductionist effect of the representationsthat are made of collective values in a judicial context reveals, if need be, the limits of law as atool and locus for grasping identities as well as individual and collective aspirations.

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Provocative in that it brings into question a certain received image of

Canada, Lajoies thesis is partly confirmed in the contribution of her Universitde Montral colleague Jean Leclair. However, contrary to Lajoie, Leclairsperspective remains mostly internal to the law, even though his positivistanalysis is clearly informed by the broader values upon which the principle offederalism is founded. In his article entitled The Supreme Court of CanadasUnderstanding of Federalism: Efficiency at the Expense of Diversity, Leclairfocuses on yet another distortion of the unity/diversity dichotomy, whichoccurs where uniformity is taken to be a synonym of unity. He demonstrates,through a very subtle analysis of the Supreme Court of Canada decisionsrelating to the federal division of powers, that this court tends to favour considerations tied to efficiency over those linked to diversity, and implicitly to establish a highly debatable correspondence between the achievement of efficiencyand the central government. The result is a marked preference for the federal (ornational) political community, and even the international community, overthe diverse provincial political communities. This correspondence is implicitin that it results from the application of a series of doctrines governing the interpretation of the division of powers (pith and substance, double aspect,incidental powers, ancillary powers, paramountcy of federal law in casesof conflict with provincial law, and interjurisdictional immunity) which oftenimplicitly encode postulates favouring efficiency, and the federal governmentas the level best suited to making optimal decisions wherever efficiency is concerned. That being said, despite the contemporary dominance of the paradigmof concurrent powers over that of exclusivity, it would be incorrect to claim thatthe latter has been entirely obliterated; there continue to be situations where itprevails. However, other considerations, this time linked to the judicial enlargement of federal areas of jurisdiction, create further obstacles to the concreteexpression of the diversity of provincial interests, with all of the consequencesthat a formal recognition of this diversity could bring about from the standpointof devising regulatory mechanisms.

According to Leclair, this proves particularly true in the case of economic

regulation, where the elaboration by the Supreme Court of a series of testsinspired by an instrumental conception of federalism has permitted a furtherprivileging of efficiency over diversity. This did not occur by chance, as theexpansion of federal economic powers came about at the same time the federalgovernment was signing Canadas first free trade agreements. Leclair arguesthat this jurisprudence reveals the willingness of the Court to provide the federal Parliament with the necessary leeway so as to ensure that Canada respectsits international agreements and effectively implements the obligations thatthey impose. The interpretation of the domestic constitution has thus been madeto evolve in view of allowing Canada to respect the constraints imposed by theexternal constitution represented by the normative web woven by interna-

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tional economic agreements.75 At the level of constitutional doctrine, however,

the conceptual expansion of these sectors of federal jurisdiction has not beenaccompanied by any refinement of the applicable conflict rules leading the primacy of federal law in cases of conflict with provincial law where there is concurrent jurisdiction over a given topic. On the contrary, the scope of these ruleswas greatly expanded by a reinterpretation of the concept of conflict thatincludes a larger number of situations of jurisdictional frictions. The courtsinterpretation of the division of powers in other domains, like that of the environment, is in keeping with this trend.But that this court sometimes (more often than not, actually) chooses efficiency over diversity is not, in Leclairs opinion, intrinsically illegitimate, nomore than is its choice (again, more or less conscious) to favour nationalinterests over regional ones. What he finds more objectionable, however, is thatall of this occurs without any real consideration for the concerns of provinces orany attempt to weigh these concerns and balance them with those of thenational political community. He notes in this regard that, case after case, theSupreme Courts defence of national interests is always better articulatedthan its less frequent defence of provincial ones. Thus, the fundamental problem of the Supreme Courts federalism jurisprudence would essentially be tiedto the quality of the justificatory arguments it provides in support of its holdingsin this field of law, which neglect to pay more than lip service to the valuesinherent to federalism.For instance, where do we see in this jurisprudence any real reflection onthe judicial understanding of the notion of autonomy in a federal context which,according to Leclair, implies a collective right to be different? Those who associate with formalism the paradigm of jurisdictional exclusivity, which dominated jurisprudence up to the mid-twentieth century, in order to better reject itunder the pretext of realism, should reconsider their position. As Leclairemphasizes:Formalism may no longer be la page, but it remains true that the legitimateconcerns of the provinces have to be addressed seriously and cannot be hiddenbehind the veil of efficiency. Furthermore, was formalism ever as formal assome claim it was? The Privy Councils decisions on the division of powers inCanada have been chastised as the epitome of formalism, but a careful readingof two of the most important of those decisions, the Parsons case and the LabourConventions Reference, demonstrate that intertwined with textual arguments arenormative arguments based on a community perspective.7675. The expression external constitution was coined by Canadian political scientist StephenClarkson. See S. CLARKSON, Uncle Sam and Us: Globalization, Neoconservatism and theCanadian State (Toronto: University of Toronto Press, 2002).76. J. LECLAIR, The Supreme Court of Canadas Understanding of Federalism: Efficiency atthe Expense of Diversity, in chapter 13, at 399.

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Leclair thus invites us to resist attempts at instrumentalizing thought, a phenomenon which has dire consequences in a federal regime. With regards to Canada,he concludes that [t]he Court should keep in mind that Canada is a politicalarena and not simply a market.77In other words, federalisms rationales cannot be reduced to mere instrumental ones. This warrants a brief remark. While federalism jurisprudencewould certainly benefit from a deeper and more constant reference to the corevalues underlying federalism, it remains difficult to see why such values couldnot, in some cases, favour the national (or federal) community. Such is thecase of the unwritten principle of comitya weaker version of the principle ofloyalty, or fidelity, recognized in other federationsthat Leclair accuses theSupreme Court of using to justify a decision which holds that the provincescannot refuse to recognize and enforce judgments emanating from other provinces. Granted, the inherent values of federalism should render us sceptical ofarguments solely advancing the objective of efficiency, but do they alsoexclude any other value likely to favour the interpenetration of federatedjudicial orders? Thus, from the minority values that were the object of Lajoiesinquiry, Leclair redirects the debate towards federative values and their prescriptive impact in division of powers disputes. But do these federative valueshave meaning beyond a truly federal context? For example, can they inform thejudicial interpretation of the new constitutional framework implemented in theUnited Kingdom, under which various powers are devolved from Westminsterto regional parliaments?This is one of the questions that Richard Cornes of the University ofEssex addresses in his contribution Cartographers of the New ConstitutionalSettlement: The United Kingdoms Top Courts and Devolution. At the outset,Cornes situates his analysis of the devolutionary process in the more globalcontext of the judicial culture that prevailed in the United Kingdom prior to thedevolution laws. In order to understand the stakes of this project, it must berecalled that, on one hand, this state is the result of a legislative union, realizedover several centuries, of England, Wales, Scotland, and Northern Ireland, and,on the other hand, that two important variables, one legal and the other demographic, have, for a long time, informed the politico-constitutional dynamics.The first of these variables refers to the domination, which until recently wascomplete, of an absolutist conception of parliamentary sovereignty. This conception has led many observers to support the theory of the validity of a unilateral modification on the part of the British Parliament of the terms of the Treatyof Union which created the Kingdom. The second variable is related to theoverwhelming demographic weight of England within the union, which leadsto the erroneous but constant assimilation of English identity with that of theUnited Kingdom. In such a context, it is hardly surprising that the idea that the77.

Ibid., at 401.

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constituent parts, in particular England, never really came to mind.Things may nonetheless change with devolution, suggests Cornes. According to him, two principal themes come out of the first years of implementationof this important state reform, which reflect, in their way, the contradictoryaspirations inherent to any structure that aims at reconciling unity and diversity.The first of these themes is that of unity, which serves to counterbalance thefragmentation of the state identity induced by the laws relative to devolution.This indeed raises the question of the extent to which the recognition, in theUnited Kingdom, of territorialized substate entities threatens the conservationof a British identity which transcends those particular entities. Can one be bothScottish and British? To the extent that it is relevant to so many federations,including multinational ones such as Canada and Belgium, this type of problemhas possibly become the contemporary federal question par excellence. It couldalso be said, facetiously, that this existential question, which echoes thatof Hamleta Danish character created by an Englishman, William Shakespeareto be or not to be, had a distinctly European flavour before its time.Interestingly, it is that very Europe that might help solve the identity crisisbrought about by the devolution laws. In effect, it is through a reliance on theEuropean Convention of Human Rights that the Judicial Committee of thePrivy Council has demonstrated a propensity, especially in the field of criminallaw, to uniformize the interpretation of this convention throughout the Kingdom, something that would have been unthinkable before since appeals ofcriminal matters from Scotland were not heard in London. As a result, Scottishcriminal law before devolution had developed autonomously relative to that ofthe rest of the Kingdom. Thus, this autonomy superficially appears to be compromised by devolution. Cornes argues in that regard that, by adopting such apolicy, the Judicial Committee of the Privy Council is making use of thepost-devolution legal framework to lay the foundations of a new pan-Britishcivic nationalism, premised on principles recognized at the European level, acourse of action which could, in a sense, act as a counterbalance to the ethno-cultural, but not necessarily exclusionary, dimension of the substatenational identities to which devolution has given a voice. We might worry thatthis process of homogenization would take place at the expense of Scottishlegal specificity, but this, Cornes tells us, is not the case. In effect, the practiceof the Judicial Committee is to form benches where a majority of judges fromScotland, or another devolved entity as the case may be, sit as soon as a claimraises a question relating to the law of devolution. The result is that thesejudges, and notably those from Scotland, have to date exercised a determinativeinfluence on the elaboration of judicial policies dealing with the interpretationof the legal framework of devolution. But, even if one must resist the temptation to ascribe judges to their origins and to predict their world view on thesole basis of these origins, how can one explain the fact that Scottish judgessubscribe to such a policy of standardization? The answer lies in the particular88

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configuration of this standardization. Cornes notes in this respect that the leadership exercised by these judges provides them with an institutional opportunity, not only to seek UK-wide uniformity in the application of Conventionprinciples, but uniformity on the basis of a distinctively Scottish approach tolegal reasoning.78 Devolution would thus herald the advent of a genuine, albeitembryonic, judicial cross-breeding where the minority view is not systematically relegated to the margins but could, on the contrary, mark the evolution oflaw on the entire territory of the state.The second theme that, according to Cornes, comes out of the first yearsof interpretation of the laws relative to devolution is that of the legal status ofthese laws, and the impact that their qualification as laws is likely to have on theconstitutional dynamics of the United Kingdom. Recall here that, technically,the laws adopted in 1998 to give legal form to the project of devolution are merestatutes enacted by the Westminster Parliament. As such, they are submitted,like any other statute, to the application of the principle of parliamentary sovereignty, which means that Parliament can modify or abrogate them however itpleases. From this perspective, the status of the political communities recognized in these laws as well as that of their legislative or executive bodies wouldbe one characterized by subordination to Westminster. Such a conclusionsuperficially prevents any federalist reading of the structures established as aresult of the devolution process. But can federalism be reduced to structures?Other contributors to this book have already answered this question in the negative, and so does Cornes. In his view, analyses of the legal dynamics broughtabout by devolution which focus solely on the technical retention of juridicalsovereignty are as unsatisfactory as they are misleading. He instead deems itimperative to grasp these dynamics in light of the political reality constituted bythe effective transfer of decisional powers to new entities, whatever their formal juridical characterization, and in view of the concrete impact that this transfer is having on the constitutional dynamics of the United Kingdom. Indeed, itis difficult to see how, outside of exceptional circumstances, Westminster couldunilaterally use its parliamentary sovereignty to reduce, or alter, the powersthat are presently exercised by the legislative and executive bodies of the political communities recognized in the devolutionary framework. To this extent,Cornes observes that, far from being mere statutes, the laws that render operative the idea of devolution take on a constitutional dimension that certaintribunals are already beginning to recognize, sometimes explicitly, sometimesimplicitly, for example, by refusing to apply to the action of the bodies it createsthe judicial review standard that would normally be applicable to subordinatedecision-making bodies merely exercising delegated powers.79 In this, Cornes78. R. CORNES, Cartographers of the New Constitutional Settlement: The United KingdomsTop Courts and Devolution, in chapter 14, at 433.79. In this sense, British tribunals find themselves in a situation akin to that in which they werein the nineteenth century when they had to determine whether the statute of the British Parliament that established Canada such as it exists today created a federation where provinces

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shares the opinion expressed elsewhere in this book by Nicolas Levrat, to theeffect that, to be called as such, a constitution does not have to be contained in asingle document bearing that name, a vision in light of which the United Kingdom would paradoxically have no constitution. Moreover, he deems possible afuture confirmation by the Judicial Committee of the Privy Council of this position which, for the moment, has only been upheld by lower courts. This wouldobviously vest the laws relative to devolution with a much broader scope thanthat initially envisioned, by consecrating the idea that this devolution actuallyeffected a partial transfer of political and legal sovereignty from Westminster tothe communities recognized in these laws.Corness central thesis is that any constitution-making process reallybegins once the original text of the constitution is written. Thus, it is thoseendowed with the responsibility of giving meaning to this text who end up crystallizing its main orientations. For instance, the initial differences betweendevolution and federalism could dwindle, and even disappear, depending onhow judges and political actors alike grasp the devolutionary dynamics, for theimplementation of a constitution also, and perhaps above all, falls to the variouspolitical actors who interact on a daily basis in a given constitutional framework. Constitutional hermeneutics should thus ideally focus as much on theirinterpretations/appropriations of the constitutional text, as on that made byjudges. Ultimately, this could very well, in our opinion, lead to a reconsideration of the ambiguous relationship between the conventions and the laws of theconstitution in the British tradition.80This relationship between law and politics is at the heart of the very richcontribution of Johanne Poirier, of the Centre for Public Law at the UniversitLibre de Bruxelles, entitled Intergovernmental Agreements and Federal Governance: At the Borders of Law and Non-law. This last contribution iseminently instructive in that it draws on comparative constitutional law, as wellas on the sociology of legal cultures and federalist theory. In it, Poirier choosesto address the problem of federal governance from the angle of a specific tool,as one could choose to analyse the phenomena of urbanization and industrialization from the standpoint of the development of the combustion engine. Theexamination of a relatively technical element of federal governance allows for areflection on the theoretical foundations of different forms of federal regimes.The method is thus a combination of empirical and micro research, whichare equal, as opposed to subordinate, to the central government. The ultimate arbitrator ofthese debates, the Judicial Committee of the Privy Council, notably rejected the argument thatholds that the powers of the provinces are mere delegated powers. It thus adopted a federativeinterpretation of the British North America Act in Hodge v. R. (1883), 9 A.C. 117 (P.C.Canada).80. For the sketch of an argument to the effect that an hermeneutic approach renders the distinction between law and convention futile, see F. GLINAS, Les conventions, le droit et laConstitution dans le renvoi sur la scession du Qubec : le fantme du rapatriement (1997)57 R. du B. 291.

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should lead to a macro theoretical analysis.81 The technical element in

question is the intergovernmental agreement, an unavoidable instrument ofgovernance in federal regimes.82 Looking at the form and status of theseagreements in various federations, she notes that they all perform similar functions, either articulating how different levels of government may concretelyexercise their jurisdictions, implementing information exchange or consultation protocols, or providing for dispute resolution or arbitration mechanisms.Some even seek to circumvent the formal constitutional division of powers or,more broadly, to engage in one form or another of constitutional reengineering.In spite of similar functions, the legal status of intergovernmental agreements varies from one federation to another, though commonalities can befound among federations belonging to the Anglo-Saxon tradition, on onehand, and those belonging to the continental tradition, on the other. Thisdichotomy overlaps to a large extent with that often established between common law and civil law jurisdictions. In Anglo-Saxon federations, Poirier notes,intergovernmental agreements generally tend to be considered as being firstand foremost of a political nature while continental federations are morelikely to recognize them a formal juridical status. When a legal system is opento the possibility that such an agreement be of a juridical nature, it will oftendistinguish between juridical and non-juridical ones on the basis of criteriainspired by the law of contract and the law of treaties. What is interesting, however, is that the juridical nature of an agreement will not necessarily dictate thelevel of respect shown to it by signatories. Using as a reference the modelof relational contracts, i.e. contracts formalizing a relationship that parties envision in the long term, Poirier explains that irrespective of their precise status inpositive law, agreements are generally as effective, if not more, as formalnorms.83 Whatever their status, parties will, as a general rule, respect themeven if it would legally be open to them not to, thus conferring the minimumstatus of soft law on these agreements. Another interesting fact reinforcing theapplication of the relational contracts model to intergovernmental agreementsis that parties to these agreements will do their utmost to resolve their differences without legal intervention, even where this last option is open to them.The situations in which a legal route is available will vary amongst different federations, but the distinction between the continental and Anglo-Saxontraditions remains relevant. Whether priority is given to, as in the former, thenorm negotiated by the parties instead of, as in the latter, their capacity unilaterally to terminate the agreement, recourse to the law will be facilitated or not.But beyond the immediate juridical consequences flowing from such recourse,81. J. POIRIER, Les ententes intergouvernementales et la gouvernance fdrale : aux confins dudroit et du non-droit, in chapter 15, at 444.82. Ibid., at 472.83. Ibid., at 457.

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the legal systems very openness to this possibility is likely to be felt at thepolitical level, either positively or negatively. In Poiriers final analysis, positive law essentially acts as a potential instrument of realpolitik in relationsamongst the components of a federal state.84One fundamental question remains, however: how to explain the resilience of the division between the continental and the Anglo-Saxon traditions of federalism? What to make of the primacy given to stability in theformer tradition, through a propensity to admit the legally binding nature andthe corollary justiciability of intergovernmental agreements, and the supremacyconferred to liberty in the latter tradition, that is, the liberty unilaterally towithdraw from such agreements because of a less constraining legal framework? Recalling the Belgian position which gives primacy to negotiated agreements over statutory provisions, Poirier raises the following question: What isobvious to Belgian legal scholars is far less so to Canadian juristsincludingthe judges of the Supreme Court of Canadawho come to the opposite conclusion. What elements of the latters legal culture push them to restrict the roleof lawand to subordinate negotiated law to a partys legally sanctioned unilateral willwith regards to agreements that perform the same regulatory functions within the Canadian federation as in the Belgian federation?85The variable which, according to Poirier, is most likely to illuminateconsideration of these questions is that of the legal culture underlying federalregimes, which leads these regimes to favour one value over another. In spite ofrestricting her analysis solely to the culture of legal professionals, that is, thosewho elaborate, interpret, and apply positive law, and of depicting this culture asdrawing on these professionals values, opinions and modes of reasoning,Poirier recognizes that any analysis centred on the concept of legal cultureinvolves undeniable methodological pitfalls: how to measure mentalities andsilent assumptions which are, by definition, not explicit? Above all, how todemonstrate that a causal link exists between a certain mentality and a particular conception of an instrument of governance? [Such an analysis] can only beinductive and is sometimes even intuitive. It presupposes an immersion in thefunctioning of diverse federal regimes. As such, this type of analysis aims torender explicit implicit influences.86In other words, necessary though it may be, the study of a federationsinstitutional framework is, in itself, insufficient because it cannot lead to acomplete understanding of the mechanisms by which silent assumptions aregenerated and justified, and which comparison may expose as resultingfrom a sense of false necessity. The legal professionals understanding of this84. Ibid., at 473.85. Ibid., at 464.86. Ibid., at 464-465.

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institutional framework is invariably mediated by values or preconceptions

which emanate from multiple sources, be it history, memory, long-term interests, power relations, identities and their hierarchies, conceptions of the roleand place of the state, substantial and procedural legal constraints, etc. Thesesources inconspicuously participate in the formation of their legal culture andestablish this culture as a discursive space where certain enunciationstheassumptions or preconceptionsare at the outset considered acceptable, whileothersthe heresiesare immediately perceived as unspeakable, if not logically impossible because they contradict a potent orthodoxy. This is howbeliefs in the incommensurability of the various expressions of federalism, andin the further impossibility of comparison, are shaped.87 Such beliefs, however,lead to a rather regrettable outcome, because they rely on an a priori ontologicalreduction which blinds jurists to the hermeneutic potentialities otherwise available to them.Rejecting such a view, Poirier focuses on four hypotheses which, shefeels, may explain the distinct approach that Anglo-Saxon and continentalfederations have to intergovernmental agreements. First of all, continentalfederations recognize a more central role to legislation, with the result that theexplanation of an institution in a legal text encourages a drift towards the recognition of the legal character of this institution.88 Secondly, the civil law orcommon law tradition to which a given federation belongsa dimension thatagain points to distinctions in the role recognized to enacted law and in the conception of law in generalwill likely influence the attribution of a juridicalstatus to an intergovernmental agreement. Thirdly, the monist or dualist tradition which inspires the understanding of the relations between the domestic andthe international legal realms in a particular federation can also serve more orless consciously as a reference point for other purely internal regulatory tools asare intergovernmental agreements. Finally, the models of reference chosen aspoints of departure for comparisons between federations appear significant.89As Poirier observes, [a]ccessibility of sources and methodological conservatism [explain that] constitutionalists from different federations have a tendencyto look at models drawing from the same two broad categories: continentalregimes engage in reciprocal examination as do Anglo-Saxon regimes.90Actually, it is as if legal scholars involved in comparative endeavours shouldnecessarily favour the logic which holds that birds of a feather flock togetherover the more open opposites attract. But what if systematically favouring87. See generally on this question M. DTIENNE, Comparer lincomparable (Paris: Seuil,2000).88. J. POIRIER, supra, note 81, at 466.89. It must be noted that the dualistic relationship maintained by several Anglo-Saxon countriestowards international law is intimately linked, from a historical perspective, to the politicaland juridical doctrine of parliamentary supremacy, on which some rely to explain the difficulty of juridifying intergovernmental agreements in these countries.90. J. POIRIER, supra, note 81, at 474.

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one over the other was an epistemological obstacle? What if intellectual rigourwas sometimes used to maskand justifyintellectual sclerosis? And what ifthe primary task of those engaging in comparison, including jurists, was tobreak out of the vicious cycle of methodological narcissism and theoreticalcomfort? It is our hope that the contributions which make up this book open apath in that direction.CONCLUSIONAlexis de Tocqueville used to say that federalism is complicated.91 It isalso irritating, we might be tempted to add. To the extent that it presupposes amulti-level governance regime, federalism implies the presence of a rathercomplex normative web. As such, it is ill-fitted to a monolithic logic where allproblems are systematically grasped through the lens of a single rationality. Onthe contrary, several complementary or competing rationalities are embeddedin the very idea of federalism. For instance, federalism is political but it is also,inevitably, legal. Moreover, it is also as much social as it is economic. Indeed,although the multi-level governance regime it presupposes tends to breed competition, it also requires cooperation and the nurturing of a spirit of solidarity.Generating order through a relatively strict division of powers, it tolerates a certain level of uncertainty in recognizing the inevitability, and sometimes thenecessity, of jurisdictional overlaps. In short, anyone who approaches federalism from a single perspective will not only limit his or her empirical understanding of that phenomenon but will also risk obscuring its rich normativetexture. For that very reason, the otherwise legitimate defence of the particularinterests of federative actors should never evolve into subtle forms of narcissistic egotism, no more than should the call to transcend irredentism lead to thesystematic de-legitimization, under the guise of unity, of other political communities of belonging. In this sense, examining this type of question after having elevated a single rationality, for example autonomy or unity, as the uniquebenchmark from which to judge the performance of a federal organization ismore akin to an exercise of theoretical rationalization of ideological preconceptions than to an authentic, and thus minimally objective, reflection on a structural and relational framework that does not lend itself to absolutes. Adoptingsuch biased angle would be even more problematic in a comparative context.How can we do justice, then, to the intrinsic complexity of the federalphenomenon, and account for the normative entanglement that this complexityimplies? How can we compare federalisms multiple expressions? Contributorsto this book remind us that we must first consider the explicit structures, be theyconstitutional, contractual, or of another nature, that are put in place to framethe conduct of federative actors. Several amongst them go on to emphasize the91. A. de TOCQUEVILLE, De la dmocratie en Amrique (Paris: Gallimard, 1961) at 253.

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importance of taking into account the underlying forces at work within thesestructures, which sometimes reveal a considerable gap between the institutionalrealm and the operational one. In other words, the subtext more often than notcorrects the text, and this phenomenon should not be overlooked. But how canthese dynamics be understood without refining and deepening our apprehension of the ideological, historical, and cultural substratum at hand? The analysismust thus be pushed further to encompass a study of the political and legalcultures that feed these dynamics. With regards to legal culture, is it favourableto the creation or maintenance of a true federative spirit or, on the contrary, is itlikely to bring about a transformation where neither the structures nor thedynamics or even the rationales which inspire political actors could be properlycharacterized as federal? Federalism is perhaps not an end in itself, but if someactors have explicitly or implicitly structured their relationship, especially in itsmost existential dimensions, on the basis of a federal logic, can we not supposethat they valued the idea of remaining faithful to it, or at least, that they wereinterested in its perpetuation? Does there not exist, in effect, actions which cannot be presumed tolerable, and which cannot be tolerated, in the absence of anexplicit, free and informed acquiescence on the part of the participants to a federal relationship, because these actions breach a set of core principles which canreasonably be held up as fundamental from the standpoint of federalism?Such interrogation would seem to justify further inquiry into the possibility of an ethics of federalism. This then raises the question of whether, beyondthe explicit mechanisms likely to incite actors to act in a manner that respectsfundamental principles, a certain ethics is not implicit in all relationships functioning according to a federal logic. Even taking into account the multipleexpressions of the federal phenomenon and recognizing their particular context, one can surmise that the sketch of such an ethics is discernable in each federation, this in spite of its association with a specific legal tradition (commonlaw or civil law), a particular federal tradition (continental or Anglo-Saxon), orsome archetypal model of federalism (cooperative or competitive; aggregativeor disaggregative). But what would be the status of such ethics? Could certainprinciples central from the perspective of this ethics become justiciable?92 Thistype of inquiry, which calls into question the boundaries traditionally established between law and politics by conceiving the former as a locus for theexpression of aspirations and not merely of norms, could perhaps allow for adeepeningdare we say a renewal?of the dialogue between jurists, politicalscientists, historians, philosophers, and other experts from related disciplines inthe social sciences and humanities. A dialogue of that type could prove evenmore fruitful in the field of comparative federalism.92. For a sketch, in the field of law, of an interpretive theory of federalism where the identificationof principles proceeds from an ethical reflection on federalism, see J.-F. GAUDREAULTDESBIENS, The Canadian Federal Experiment, or Legalism Without Federalism? Toward aLegal Theory of Federalism, in M. CALVO-GARCIA and W. FELSTINER, eds., Federalismo/Federalism (Madrid: Dyckinson, 2003) at 79.

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To achieve this objective, however, it appears essential, as suggested by

several contributors to this book, to consider federalism as a political and legalparadigm rather than as a mere tool box. Moreover, to better grasp its ethicaldimension, it may be appropriate to think about federalism in a manner akin tothe way Paul Gauguin thought about nature. For Gauguin, skies could beyellow and grass red. Could our apprehension of the federal phenomenon, be itfor its own sake or in the context of a comparative process, not be modeledalong the same lines? Rather than confining it to the study of explicit structures,should we not also attempt to understand this phenomenons implicitdimension? As daunting a task as it may be, it is probably worthwhile to undertake it if we really wish to answer the existential questions cited in epigram, andwhich inform the inquiries of those who, all over the world, evolve collectivelyand personally in federal contexts: Where do we come from? What are we?Where are we going?

In this article, the author puts forward

a preliminary typology for existing federalsystems. Presuming that a comparativemethodology can be both synchronic anddiachronic, the author employs a structuralmethod of comparison to formulate a set ofideal types of federalisms. The articlecanvasses the authors study in relation tobroader considerations of comparativemethodology, as applied to topics of aninternational nature. The author is thus inposition to propose a way to capture thediversity of federations within the broaderprinciple of federalism. From the analysis,two principal criteria emerge as theoretically outstanding : first, a politico-juridicalcriterion specifying the inter- or intrastateconstitutional relations linking the federaland federated orders of government;secondly, a monetary-economic criterionidentifying the type of fiscal regulationin place, whether based upon the marketor on a centralized redistributive system,which ensures a certain degree of equality,in terms of living standards, between therespective federated entities.

An increasingly transnational constitutional discourse offers substantial benefits to jurists and scholars alike, especiallyon such central concepts as human dignityand equality. Understanding the comparative dimensions of federalism is of increasing importance to the cross-cuttingfields of constitutional law, internationallaw, and political science. But constitutional federalismthe subject of thispaperis marked by two phenomena thatmay call for particular cautions for students of comparative constitutional law.First, federal systems are generally constructed as package deals: the divisionand allocation of powers in federal systems characteristically are created asinterlocking pieces, and their interpretation will likewise be based in part on therole a particular provision plays in theoverall system. Second, federal systemsare generally created by historically contingent compromises, perhaps to a larger

* Professor of Law, Georgetown University Law Center. The author is grateful to Amber Dolman,Alida Dagostino, and Emily OBrien for their valuable research assistance, and to hercolleagues at Georgetown for their many helpful comments. This chapter grows out of a paperprepared for a presentation at the McGill University International Conference on Federalism,November 8-10, 2002. The topic is also explored in another version of this paper beingpublished as Comparative Constitutional Federalism and Transnational Judicial Discourse,(2004) 2 Intl J. Const. L. 91. This chapter was completed in 2003.

INTRODUCTIONAn increasingly transnational constitutional discourse has developed inrecent years. This discourse offers substantial benefits to both jurists and scholars. On issues including the death penalty,1 positive social welfare related rights,21. Compare United States v. Burns, [2001] 1 S.C.R. 283 (Canada) and Soering v. United Kingdom, (1989) 161 Eur Ct. H.R. (Ser. A.), 11 EHRR 439, with Stanford v. Kentucky, 492 U.S. 361(1989) (rejecting the relevance of other nations positions on legality of the death penalty). Therelevance of foreign practice remains controversial in the U.S. Supreme Court. See Atkins v.Virginia, 536 U.S. 304 at 316 n. 21 (2002) (noting that within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved); ibid., at 325 (Rehnquist, C.J., dissenting and vigorously disagreeing thatpractices in other nations are relevant to the 8th Amendment question of what is cruel andunusual; if it is evidence of a national consensus for which we are looking, then the viewpoints of other countries simply are not relevant). See also Knight v. Florida, 528 U.S. 990 at995-996 (1999) (Breyer, J., dissenting from the denial of certiorari and arguing that decisionsof other nations cast doubt on validity of death penalty in U.S.); ibid., at 990-993 (Thomas, J.,concurring in denial of certiorari and accusing Breyers neoteric resort to the practice ofother nations of instead supporting the constitutionality of the death penalty); Foster v. Florida,123 S.Ct. 470 at 472 (2002) (Breyer, J., dissenting, noting that courts of other nations havefound that delays of 15 years or less can render capital punishment degrading, shocking, orcruel and specifically noting a recent Canadian decision holding that the potential for lengthyincarceration before execution is a relevant consideration when determining whether extradition to the United States violates principles of fundamental justice); compare ibid., at 470note * (Thomas, J., concurring in denial of certiorari, While Congress, as a legislature, maywish to consider the actions of other nations on any issue it likes, this Courts Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans). Statecourts in the United States may also rely on international human rights norms and the constitutional decisions of foreign tribunals. See e.g. Sterling v. Cupp, 290 Or. 611, 625 P.2d 123 atn. 21 (1981) (citing the Universal Declaration of Human Rights and decisions of the EuropeanCourt of Human Rights).2. Compare Republic of South Africa v. Grootboom, (2000) 11 BCLR 1169 (CC) with the PolishHousing Allowance Case, 4 East Eur. Case Rep. 69 (1997) (reporting on POL-1997-1-003) andHungarian Welfare Benefit Reduction cases, 43/1995 (VI.30) AB Decision (ConstitutionalCourt of Hungary), 4 East Eur. Case Rep. Const. L. 64 (1997).

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freedom of expression,3 and gender equality,4 constitutional courts around the

world are confronting similar legal issues and principles. Not only are theyaddressing these issues in parallel, but increasingly constitutional courts referto the decisions and reasoning of other constitutional courtsnot always toagree, but rather to refine and sharpen understandings of the best ways to applysuch basic concepts as human dignity, equality, and freedom in contemporarycontexts.5Many judges and scholars celebrate this transnational constitutionalconsciousness. Professor Lorraine Weinrib of Canada has argued that there is atransnational constitutional method, founded in a basic commitment to humandignity, and applying principles of proportionality in measuring the lawfulnessof limitations on individual rights.6 Professor Donald Kommers of the UnitedStates has devoted much of his distinguished scholarly career to understandingGerman constitutional law and exploring how its commitments to humandignity might inform understandings of constitutionalism more generally.7Justice Kirby of Australia praises the increase in judicial consideration of theconstitutional decisions of other nations,8 and President Barak of the IsraeliSupreme Court draws broadly on comparative sources in discussing the roles ofconstitutional courts.9 Justices Breyer, Ginsburg, Kennedy, and OConnor andChief Justice Rehnquist of the United States Supreme Court have all at leastnodded in the direction of learning from the constitutional decisions of othernations courts.103.

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The potential benefits of comparative constitutional learning are many.

They include the development of general understandings of the content of coreconcepts such as human dignity, equality, and freedom, and thus aid in theinterpretive questions that arise under the many constitutions of the world thatinvoke similar concepts. Comparative constitutional study offers the possibilityof sharpened understandings of the particular aspects of ones own system orprovisions and, in some cases, of illuminated understandings that what mayhave seemed essential to constitutionalism are rather choices made by particular polities, not necessary for reasonable forms of constitutionalism.11Confronting other national court decisions and explaining disagreements withthem may help to elicit better reasoning and more complete understanding ofdifference and distinctiveness.12 Comparative constitutional study may also behelpful at the level of interpretive methodology, and in determining what areappropriate sources to consider in resolving constitutional questions.13 Forthose interested in the operation of legal or political institutions, comparativeconstitutional study offers a rich and varied field of data sets about the relationship between structures and particular kinds of outcomes, such as stability,peace, protection of civil liberties, economic justice and/or success. Comparative constitutional study also has its limitationsmost notably those derivingfrom the difficulty of avoiding the temptation to examine other constitutionalsystems only through the lens of the system one is most acquainted with,without seeking to obtain both critical distance from ones own system andcontextualized understandings of other systems.14

11.12.

13.

14.

OCONNOR, Broadening Our Horizons: Why American Lawyers Must Learn AboutForeign Law, (1998) 45 Fed. Law. 20; Ruth BADER GINSBURG and Deborah MERRITT,Affirmative Action: An International Human Rights Dialogue, (1999) 54 Rec. 279;Knight v. Florida, 528 U.S. 990 at 995-996 (1999) (Breyer, J., dissenting from the denial ofcertiorari, arguing that decisions of other nations cast doubt on the validity of the death penalty domestically); Lawrence v. Texas, 123 S.Ct. 2472 at 2481 (2003) (Kennedy, J., citingDudgeon v. United Kingdom, (1981) 45 Eur. Ct. H.R. (Ser. A.) 52).See e.g. TUSHNET, supra, note 6, at 1233-1237 (discussing the U.S. doctrine of standing).For a helpful discussion on the use of another nations constitutional experience as a negativeprecedent in constitution drafting and interpretation, see Sujit CHOUDHRY, The LochnerEra and Comparative Constitutionalism, (2004) 2 Intl J. Const. L. 1. For further discussionof uses of comparative constitutional law see David FONTANA, Refined Comparativism inConstitutional Law, (2001) 49 U.C.L.A. L. Rev. 539.See State v. Makwanyane, 1995 (3) SA 391 at 404-405 (CC) [Makwanyane] (discussing theappropriate role of the legislative history of constitutional provisions in constitutional interpretation).See generally Gnter FRANKENBERG, Critical Comparisons: Re-thinking ComparativeLaw, (1985) 26 Harv. Intl L.J. 411. Other objections to the use of comparative constitutionallaw, including questions of legitimacy derived from positivist theories of law or the politicalcontext of representative democracies, as well as concerns for jurists competence to understand foreign decisions properly, are not addressed in this chapter. For further discussionof these and related issues, see e.g. JACKSON, supra, note 5, at 263-271; CarlosF. ROSENKRANTZ, Against Borrowings and Other Nonauthoritative Uses of ForeignLaw, (2003) 1 Intl J. Const. L. 269 (arguing that resort to foreign law can impair development of authentic domestic constitutional law).

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In addition to the growing phenomenon of comparative constitutional

discourse, in both courts and academe, there has been renewed interest in federalism associated with the wave of constitution-making since the Berlin Wallfell in Europe and apartheid was overcome in South Africa. Federalist orconsociational solutions have been rejected in the former Czechoslovakia,15reformed in Russia, advanced in Belgium and South Africa,16 considered andadopted in a very tentative way in the United Kingdom,17 and advocated for, orin form used, in such unstable and violence-ridden places as Bosnia and theMiddle East.18 Federalism has come to occupy a hot seat on the agenda ofthe United States Supreme Court which, since 1991, has substantially revived,and changed, the prior post-New Deal consensus on federalism in the UnitedStates.19 And Canada has witnessed repeated debate and referenda on the question of Quebecs status within a federal Canada.Federalism is of concern not only to constitutionalists, but also to international law experts and to political scientists. What some call postmodern15. See Eric STEIN, Czecho/Slovakia: Ethnic Conflict, Constitutional Fissure, Negotiated Breakup (Ann Arbor, Mich.: University of Michigan Press, 1997).16. Belgiums process of constitutional change from a unitary to a federal state began in 1970; its1993 constitutional amendments, effective in 1994, solidified and extended devolutionarychanges to establish a federal form of government involving the centralized government,regional governments and governments based on linguistic communities. See Andr ALEN,ed., Treatise on Belgian Constitutional Law (Deventer: Kluwer Law and Taxation, 1992);International Constitutional Law, ICL Belgium Index, online: International Constitutional Law <http://www.oefre.unibe.ch/law/icl/be__indx.html>. South Africas constitutionof October 11, 1996 also provides for a federal or quasi-federal form of organization. See theConstitution of the Republic of South Africa, 1996, s. 40-41, 60, 76, 103-104, 151 (providingfor a co-operative form of government in which powers are shared at the national, provincial, and local level, and establishing a National Council of Provinces as part of the nationallegislative process).17. For a discussion of the Scotland Act 1998 (U.K.), 1998, c. 46; the Government of Wales Act1998 (U.K.), 1998, c. 38; and the Northern Ireland Act 1998 (U.K.), 1998, c. 47, see VernonBOGDANOR, Devolution in the United Kingdom (Oxford; New York: Oxford UniversityPress, 1999) and Noreen BURROWS, Devolution (London: Sweet & Maxwell, 2000). Seealso B.M. SELWAY, The Constitution of the UK: A Long Distance Perspective, (2001) 30Common Law World Review 3 (describing devolutionary change and, more generally, discussing federalism in the UK). For a more skeptical view on whether the devolutionary acts of1998 create or are a step towards a federal system, see Rodney BRAZIER, The Constitutionof the United Kingdom (1999) 58:1 Cambridge L.J. 96.18. On Bosnia-Herzegovina, see Robert M. HAYDEN, The 1995 Agreements on Bosnia andHerzegovina and the Dayton Constitution: The Political Utility of a Constitutional Illusion,(1995) 4 East Eur. Const. Rev. 59; Bosnia: The Contradictions of Democracy WithoutConsent, (1998) 7 East Eur. Const. Rev. 47; and Bosnia and Herzegovina, (1999) 8 EastEur. Const. Rev. 7. See also CIA Country Book, Bosnia/Herzegovina, online: The WorldFactbook 2002 <http://www.odci.gov/cia/publications/factbook/geos/bk.html#> (updated asof March 19, 2003). On federalism and the Palestinian-Israeli conflict, see e.g. JustusR. WEINER, Co-Existence Without Conflict: The Implementation of Legal Structuresfor Israeli-Palestinian Cooperation Pursuant to the Interim Peace Agreements, (2000) 26Brooklyn J. Intl L. 591 (discussing the possibilities of confederal or federal resolutions).19. See e.g. Vicki C. JACKSON, Federalism and the Uses and Limits of Law: Printz andPrinciple, (1998) 111 Harv. L. Rev. 2180; JACKSON, supra, note 5, at 233-241.

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tribalism20 has led to difficult and in some cases deadly conflicts. In recentdecades, international law has struggled with apparent tensions between theolder norm of uti possidetisthe principle of the territorial integrity of existingstates within colonial boundariesand the principle of self-determination,codified in two major international human rights covenants.21 According toThomas Franck, this right of self-determination does not give minorities alegal right to secede but rather implies commitments both to democracy and tothe rights of ethnic, religious or linguistic minorities to enjoy their own culture,practice their religion, or use their language.22 In his view, [p]ost-colonialinternational law ... appears not to take sides [on secession] but, rather, toregulate and mitigate in a humanitarian fashion the effects of postmodern tribalsecessionism.23 Federal structures in some respects may facilitate secession,both politically and under international law, insofar as they provide boundarieswhich can be used to define a new state.24 Federalism, moreover, may be asolution to some problems in international law, but poses its own challenges totraditional international law norms premised on national states as the principalactors in the international arena. Subnational entities in many countriesincluding the United States, Germany, and Belgiumare now insisting onhaving a place at the table in international relations, in at least some areas.Federalism may be a solution to problems of governance, but may rigidify and

20. T.M. FRANCK, Postmodern Tribalism and the Right to Secession, in Catherine BROLMANN, Rene LEFEBER and Marjoleine ZIECK, eds., Peoples and Minorities in International Law, (Dordrecht: Martinus Nijhoff, 1993).21. See International Covenant on Civil and Political Rights, 23 March 1976, 999 U.N.T.S. 171,G.A. res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), art.1(1) [hereinafter ICCPR]; International Covenant on Economic, Social and Cultural Rights,3 January 1976, 993 U.N.T.S. 3, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N.Doc. A/6316 (1966), art. 1(1) (using the same language as ICCPR art. 1(1)); see also Declaration on Principles of International Law Concerning Friendly Relations and CooperationAmong States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N.GAOR, 25th Sess. Supp. No. 28, at 121, U.N. Doc. A/B028 (1987); Final Act of the Conference on Security and Cooperation in Europe (Helsinki Accord of 1975) 14 I.L.M. 1292,Principle VIII (participating States will respect the equal rights of peoples and their right toself determination); but cf. ibid. at Principles IV, VIII (respect for territorial integrity of eachparticipating state).22. See FRANCK, supra, note 20, at 11 (referring as well to art. 27 of the ICCPR). See also AnneF. BAYEFSKY, Introduction, in Anne R. BAYEFSKY, ed., Self-Determination in International Law: Quebec and Lessons Learned (Boston: Kluwer Law International, 2000) at15-17; Karen KNOP, Diversity and Self-Determination in International Law (New York:Cambridge University Press, 2002), at 53 n. 108, 65-90. For differing views on secession ininternational law, see e.g. Stephen J. TOOPE, Comment on the Quebec Secession Reference,(1999) 93 Am. J. Intl L. 519, 523-525 (suggesting that international law is beginning torecognize a more expansive right to secede beyond colonial situations). Franck acknowledgesthat nothing in the ICCPR prohibits secession; FRANCK, supra, note 20, at 12.23. FRANCK, ibid. at 12.24. See Allen BUCHANAN, Federalism, Secession and the Morality of Inclusion, (1995) 37Ariz. L. Rev. 53 at 55 (arguing that federalism is likely to succeed as an alternative to secession only if international law unambiguously rejects the principle that an existing federalunit may secede if there is a plebiscite in that unit in favor of secession).

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even exacerbate the divisions that it seeks to manage. There is thus a robustdiscussion among political scientists about its utility and effects.25In order to understand the particular challenges of comparative constitutional federalism, this paper will first identify some differences in the scopeof transnational constitutional discourse on federalism and on individual rights.It will then briefly address, more generally, the nature of comparative constitutional study, and proceed to identify some particular challenges for the study ofconstitutional federalism.A. CONSTITUTIONAL COMPARISON: CONTRASTINGTRANSNATIONAL CONSTITUTIONAL DISCOURSE ININDIVIDUAL RIGHTS AND FEDERALISM CASESConsider how a transnational comparison about an issue of constitutionallaw may be introduced. The opinion of President Chaskalson of the SouthAfrican Constitutional Court, in its well-known death penalty case, State v.Makwanyane,26 might serve as an illustration. In Makwanyane, PresidentChaskalson, writing the main judgment of the Court, noted that the Constitutionis silent on the death penalty but prohibits cruel, inhuman or degradingtreatment or punishment, and indicates that the rights to life and human dignityare protected.27 South Africa has a constitutional provision (similar to onein Canada) specifying that any limitation on rights must be justifiable in anopen and democratic society based on freedom and equality.28 The SouthAfrican constitution also specifically authorizes consideration of foreign lawon constitutional questions of interpretation.29

25. For a well-informed and appropriately cautious view about the prospects for managing ethnicconflict through geographic political divides (as well as other structural devices such asvoting schemes, reserved seats, etc.) see Donald HOROWITZ, Ethnic Groups in Conflict,2nd ed. (London: University of California Press, 2000) at 563-653. For his description of thedebate over whether federal systems should be organized along ethnic lines or in moreheterogenous ways, see at 602 n. 2.26. Supra, note 13.27. Ibid., at 402-403.28. [Interim] Constitution of the Republic of South Africa, No. 200 of 1993, s. 33(1); see alsoConstitution of the Republic of South Africa, 1997, s. 36(1). Canadas s. 1 provision differssomewhat in language, but leads to similar ends. See Canadian Charter of Rights andFreedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982(U.K.), 1982, c. 11, s. 1.29. [Interim] Constitution of the Republic of South Africa, ibid., s. 35(1) (In interpreting theprovisions of this chapter a court of law shall promote the values which underlie an open anddemocratic society based on freedom and equality and shall, where applicable, have regard topublic international law applicable to the protection of the rights entrenched in this chapter,and may have regard to comparable foreign case law.); see also Constitution of the Republicof South Africa, 1997, s. 39(1).

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The opinions of the Court discussed decisions on the death penalty fromcountries around the world, for a number of purposes.30 Justice Chaskalsonused foreign law to establish a trend of decisions against the death penalty,31and also considered and, in some cases, relied on the reasoning of those justiceswho condemn the death penalty. His opinion also treated seriously those courtdecision that took a different view, distinguishing those decisions upholdingthe death penalty (in the United States, India, and Botswana) in part on groundsof differences in constitutional texts (in the United States, the presence ofrights provisions impliedly accepting capital punishment and the absence ofa limitations clause, which in South Africa gives rise to a broad readingof basic rights; in India, the presence of a punishment by law clause).32 Healso concluded that comparative experience in retentionist jurisdictions demonstrated the impossibility of meeting standards of fairness in the administration of the death penalty.33 This argument was supported in large measureby analysis of the experience of the United States, as a major retentionistjurisdiction, as reflecting the impracticability of an effort to constrain the deathpenalty within constitutional limits.34Within this single opinion, then, one can see a number of uses of comparative constitutional law: as facts to establish a trend; as reasoning abouta human right that has transnational (or what Gerald Neuman calls supra positive) meanings;35 as revealing consequences of different interpretive choices;and as a basis for national differentiation and distinction.36 Although themethod is in part empirical and consequentialist, it also suggests that comparative constitutional decisions can help provide meaning to terms capable ofrelatively universal understandings. By this I mean that the methodology30. Although I focus on the opinion of Chaskalson, several other justices likewise averted toforeign constitutional law as arguments were weighed and formulated. See e.g. Makwanyane,supra, note 13, at 461-465 (Didcott, J.).31. See ibid., at 412-413 (discussing the momentum against the death penalty).32. Ibid., at 415-416 (noting that Fifth and Fourteenth Amendments of the U.S. Constitutionimpliedly accept capital punishment); ibid. at 435-436 (noting the different analysis requiredby s. 33 of South African Constitution from that employed in U.S.); ibid. at 426-427 (distinguishing the text of Indian Constitution as specifically contemplating the death penalty); ibid.at 428 n. 103 (noting the Indian Constitutions similarity to that of Botswana).33. See ibid., at 422; see also at 415-426, 431-432 (discussing the U.S. death penalty law); at427-429 (discussing the death penalty law in India).34. Ibid., at 418-422. Justice Chaskalon also discussed in some detail the approach of other constitutional courts to a limitation clause, such as s. 33. See ibid., at 437-439 (discussing limitations clauses in Canada, Germany, and the European Convention); ibid., at 446-447. TheSouth African Court also discussed U.S. state court decisions in Massachusetts and Californiaholding the death penalty unconstitutional under state constitutions. See Makwanyane, supra,note 13, at 421 n. 82, 432-433.35. See Gerald NEUMAN, Human Rights and Constitutional Rights: Harmony and Dissonance, (2003) 55 Stan. L. Rev. 1863 at 1868.36. See Sujit CHOUDHRY, Globalization in Search of Justification: Toward a Theory ofComparative Constitutional Interpretation, (1999) 74 Ind. L.J. 819 at 860-862 (noting usesof comparative material in dialogue that may clarify one nations distinctiveness fromanother).

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implies that the meaning of the concept for which a constitutional provisionstands is one that transcends the particular language employed, and that theconcept can and should be understood, in part, as members of the constitutionalcommunity of nations understands it.37It is important however, to recognize as well, that the South Africancourts decision in Makwanyane was by no means entirely universalist in itsapproach. As noted above, constitutional approaches in the United States and inIndia were distinguished from South Africa, providing negative precedents as abasis for an expression of South African constitutional identity. Moreover,President Chaskalson contextualized the decision in South African history,referring to and relying specifically on South African history of political violence in discussing the inefficacy of the death penalty as a deterrent,38 and,interestingly, on the need in South Africa for the government to serve as a rolemodel in respecting the value of human life.39 Justice Mahomed likewise notedthat the South African Constitution represented a decisive break from, andringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular and repressive, and emphasized the post-ambles commitmentto ubuntu, an ethos of an instinctive capacity for and enjoyment of lovetowards our fellow men and women. The death penaltys finality was, in hisview, inconsistent with the South African Constitutions commitment to humanlife and dignity.40 Justice Sachs separate opinion took pains to express the needto give long overdue recognition to African law and legal thinking, as a sourceof legal ideas, values and practices.41 But co-existing with the more particularized discussion of South Africa in these opinions is a more universalist inquiryinto the decisions of other constitutional courts about the validity of the deathpenalty as helpful in resolving issues under constitutional language forbiddingcruel, inhuman or degrading punishment.42In resolving individual rights issues, it is not difficult to find decisionsby constitutional courts in one nation drawing upon decisions on relatedissues in other, foreign jurisdictions.43 Makwanyane is just one example in justone constitutional court. The Supreme Court of Canada in recent years has37. See Anne-Marie SLAUGHTER, A Global Community of Courts, (2003) 44 Harv. J. IntlL. 191 at 194-204.38. See Makwanyane, supra, note 13, at 442-443.39. Ibid., at 444.40. Ibid., at 487-488; see also at 490 (Mahomed, J., concurring) (also invoking opinions of otherconstitutional court justices). Several other justices discussed the concept of ubuntu. See e.g.ibid., at 500-501 (Mokgoro, J. concurring).41. Ibid., at 514 (Sachs, J. concurring). Sachs went on to discuss not only ubuntu, but also studiesof the practices of various traditional communities of people in Africa (at 517-518), and of thesix neighboring countries to South Africa (at 519).42. See [Interim] Constitution of the Republic of South Africa, supra, note 28, at s. 11(2).43. For a very helpful discussion, see Christopher McCRUDDEN, A Common Law of HumanRights? Transnational Judicial Conversations on Constitutional Rights, (2000) 20 Oxford J.Leg. Stud. 499. See also Ann-Marie SLAUGHTER, A Typology of Transjudicial Communication, (1994) 29 U. Rich. L. Rev. 99.

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self-consciously claimed the mantle of a cosmopolitan constitutional culture,

characterizing Canada as a leader in the international community againstthe death penalty,44 and often referring to and discussing the constitutionaldecisions of other courts. In R. v. Keegstra,45 for example, the Canadian Courtdiscusses United States First Amendment cases; in R. v. Morgentaler,46 theCourt refers to European, German and United States abortion cases; and thereare numerous Supreme Court of Canada cases citing Board of Education v.Barnette.47While it is not so common these days to findat least in English language cases that are readily searchabletransnational reliance on federalismcases,48 it is by no means unheard-of. Justice Frankfurter relied on Canadiandecisions in U.S. tax immunity cases in the 1940s and 1950s.49 More recently,Justice Breyer has urged consideration of comparative federal structures in animportant dissent.50 There are also a number of Canadian federalism casesthat cite to the U.S. Courts decision in McCulloch v. Maryland.51 In Australia,44.45.46.47.

48.

49.

50.51.

See United States v. Burns, supra, note 1, at 330-332 (Can.).

See R. v. Keegstra, supra, note 3, at 738-744 (Dickson, C.J.).See R. v. Morgentaler, [1988] 1 S.C.R. 20 at 30, 46 (Dickson, C.J.); at 108, 113 (Beetz, J.).See e.g. Little Sisters Book & Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R.1120, citing West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (holding unconstitutional a state law that compelled all schoolchildren to salute the flag, includingthose with religious objections, as an infringement on freedom of conscience). According to aLexis search in January 2003 for board of education w/3 barnette in the file All SupremeCourt of Canada Decisions, there were seven cases (beginning in 1963) citing the U.S.Courts 1943 decision in Barnette.See Jonathan MILLER, The Authority of a Foreign Talisman: A Study of U.S. ConstitutionalPractice as Authority in Nineteenth Century Argentina and the Argentine Elites Leap of Faith,(1997) 46 Am. U. L. Rev. 1483 at 1562-1567 (describing the first case involving a significantdeparture from Argentinas constitutional courts reliance on U.S. constitutional decisions, asone involving a clash between provincial and national power and the meaning of the generalwelfare clause of the federal governments powers, and describing the continued reliance onU.S. cases for issues of arbitrary or excessive taxation, property, and contract rights).See e.g. United States v. Allegheny Co., 322 U.S. 174 (1944) at 198 (Frankfurter, J., dissenting and arguing that case was wrongly decided and that U.S. should have followed Canadianrule because federal systems were similar); Graves v. New York Ex. Rel. OKeefe, 306 U.S.466 (1939) at 491 (Frankfurter, J., concurring and arguing that intergovernmental tax immunity issue presented same legal issues as Canada and Australia under particular provisionsof their constitutions).Printz v. United States, 521 U.S. 898 (1997) at 976 [hereinafter Printz] (Breyer, J., dissenting).See e.g. Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3S.C.R. 134, 1999 Can Sup Ct LEXIS 67 (citing McCulloch v. Maryland, 17 U.S. (4 Wheat)316 (1819) [hereinafter McCulloch]); Reference re Alberta Legislation, [1938] S.C.R. 100(also citing McCulloch); but see Bank of Toronto v. Lambe (1887), 12 A.C. 575 at 587 (theargument having been made in reliance on McCullochs argument that the power to tax is thepower to destroy, the Privy Council asserts that Chief Justice Marshalls opinion was onedealing with the constitution of the United States, but that it is quite impossible to arguefrom the one case to the other, given the distributions of power in the British North AmericaAct, 1867, and that it would be an error to deny the existence of provincial power if it fallswithin the scope of what was granted in the express words of an Act of Parliament in s. 92 ofthe Constitution Act, 1867 because of some possibility it may be abused).

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moreover, there are a number of cases that refer to U.S. federalism decisions,though some of these may be accounted for not by a general willingness orcommitment to use comparative constitutional sources, but because of a morespecific history of modeling parts of the Australian Constitution on that of theUnited States.52 Yet a search for Canadian references to NLRB v. Jones &Laughlin Steel Corp.,53 a major U.S. federalism case from the 1930s, yieldedonly 3 citing cases, none of which involved Canadian federalism issues.54 It52. See e.g. State of Victoria v. Commonwealth of Australia, [1996] 138 A.L.R. 129 (H.C.A.) at212-213 (Dawson, J. dissenting, discussing federalism decisions of both U.S. and CanadianSupreme Courts). See also Andrew INGLIS CLARK, Australian Constitutional Law, 2nd ed.(Melbourne, 1905) at v. (declaring that the High Court of Australia has authoritativelydeclared that the principles of McCulloch should govern interpretation of the Commonwealthof Australias constitution and that accordingly U.S. decisions can be referred to with moreconfidence) quoted in William RICH, Constitutional Law in the United States and Australia:Finding Common Ground, (1995) 45 Washburn L.J. 1 at 4 n. 15. By 1920, however, the HighCourt had staked out a more differentiated view. See Amalgamated Society of Engineers v.Adelaide Steamship Co Ltd. (1920), 28 C.L.R. 129 (H.C.A.) at 145-146, 155 (rejecting thosewho would rely on U.S. authorities to imply limits on national power to regulate state governments employment practices). Early decisions of the Supreme Court of Argentina, whose Constitution was in part modeled on that of the United States, were also strongly influenced by U.S.case law. See supra, note 48. For a discussion of genetic influences of one constitution on theframing or drafting of another, see Louis HENKIN, A New Birth of Constitutionalism:Genetic Influences and Genetic Deficits, (1993) 14 Cardozo L. Rev. 533 at 536-537; cf.CHOUDRY, supra, note 36 at 825, 838-841 (distinguishing influence from genealogicalrelationships in which one constitutional order is born from another).53. 301 U.S. 1 (1937) [hereinafter Jones & Laughlin].54. Although my Lexis search of Jones and Laughlin or Laughlin Steel, yielded only 3 caseswith matches in the Supreme Court of Canada file on Lexis, West Virginia State Board ofEducation v. Barnette, 319 U.S. 624 (1943), a classic U.S. case on religious liberty was citedin 7 cases, Griswold v. Connecticut, 381 U.S. 479 (1965), on marital privacy and access tocontraception in 5 cases, and Miranda v. Arizona, 384 U.S. 436 (1966), on rights againstself-incrimination, in 9 Canadian Supreme Court cases. Interestingly, of the 3 cases referringto Jones & Laughlin, none involved federalism issues in Canada, but rather they cited it asrecognizing a fundamental right of workers to freely associate. See Dunmore v. Ontario(2001), 207 D.L.R. (4th) 193 at 259 (LHeureux Dub, J., dissenting); Delisle v. Canada,[1999] 2 S.C.R. 989 at 1075 (Cory and Iacobucci, JJ., dissenting); Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at 321 (Dickson, C.J., dissenting). Morerecent U.S. federalism cases do not appear to be part of Canadian constitutional discourse.The 1985 U.S. decision in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.528 (1985), does not appear to be cited in the Canadian Supreme Court, nor Printz, norNational League of Cities v. Usery, 426 U.S. 833 (1976)all major U.S. federalism decisions. Based on a Lexis search done in October of 2002, there were 3 cases citing to Marburyv. Madison, 5 U.S. 137 (1803), and another 7 case cites to McCulloch (one case from 1999,the others predating 1939). At least one of these is a federalism case about federal taximmunity. A very recent Canadian federalism case, upholding power of provinces to regulateattorney conduct including disclosure by federal prosecutors in criminal cases notwithstanding federal power over criminal law had no reference to non-Canadian materials in index.See Krieger v. Law Society of Alberta (2002), 217 D.L.R. (4th) 513. Yet the issue of stateauthority to regulate federal prosecutors litigation behavior (in the U.S., contact with partieswithout their counsel) was the subject of several reported decisions in the 1990s in the lowerfederal and state courts and of law review commentary as well. See e.g. In re John Doe, 801F. Supp. 478 (D.N.M. 1992); Neals-Erik WILLIAM DELKER, Ethics and The FederalProsecutor: The Continuing Conflict Over The Application of Model Rule 4.2 to FederalAttorneys, (1995) 44 Am. U.L. Rev. 855.

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is far easier to find, in recent Supreme Court of Canada cases, discussions

of U.S. individual rights cases than of U.S. federalism cases.55 Although citations are not a complete or necessarily reliable measure of influence, they dotell us something about the degree to which justices believe that foreign authority on constitutional questions might be helpful to cite. And so far as I amaware, Canada is not unique in this regard. That is, in constitutional courtsaround the world there is a more engaged transnational discourse about themeaning of human rights than about other issues in constitutional law. Arethere reasons why federalism cases may be less widely cited elsewhere than areindividual rights cases? Why would there be a more engaged transnational judicial discourse about individual rights than about federalism?B. CONSTITUTIONAL FEDERALISM AND THE LIMITS OFCOMPARISON: PACKAGE DEALS AND HISTORICALCOMPROMISESThere are a number of possible explanations for this apparent difference.One explanation might be simply that there are far more countries with constitutions having individual rights provisions than there are constitutionally federal nations in the world.56 That being said, Canada is a federal nation and yet,the data cited above suggest that its Court now seems to resort to comparativecaselaw in individual rights cases to a greater extent than in federalism cases.Another explanation might be that, for a number of reasons, courts and thejudges who sit on them have come to believe that individual rights are theirparticular charge in a way that permits self-identification as constitutionalcourt judges around the world.57 Newer courts in societies in which judicial55. See supra, note 54. This is illustrated by one further comparison. A Lexis search in January2003 in Canadian Supreme Court decisions for trade and commerce w/50 commerceclausean effort to identify Canadian federalism cases referring to U.S. commerce clausecasesyielded only 4 hits. Two of the cases were not referring to U.S. federalism issues, andof the other 2 only one discussed, briefly, a U.S. Supreme Court case to say it was not relevant.By comparison, a Lexis search within Canadian Supreme Court decisions for freedom ofexpression w/50 First Amendment yielded 12 cases, even though Canada only adopted aconstitutional protection for freedom of expression in 1982. Could these results be explainedbased on the volume of federalism as compared to freedom of speech decisions in the UnitedStates Supreme Court? It is doubtful. A Lexis search of U.S. Supreme Court cases for freedom of expression, yielded 225 hits and for freedom of speech, 577 (of which a numberoverlapped with the 225). A search for the phrase commerce clause yielded more than1,000 hits, the search being interrupted because there were so many cases. Other explanationsmay relate to the fact that the Charter came into force at a time when it was easier to find outabout and thus refer to U.S. decisions than when the Constitution Act, 1867 came into forceand in the early years of its interpretation.56. According to the Forum of Federations, only 25 of the 193 countries in the world are federal incharacter, though these countries contain 40% of the world population. See The Forumof Federations, List of Federal Countries, online: <www.forumfed.org/federalism/cntrylist.asp?lang=en> visited on May 30, 2003).57. See e.g. the International Commission of Jurists, which is described in its website as dedicated to the primacy, coherence and implementation of international law and principles that advance human rights. International Commission of Jurists, available online:

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review is not well-instantiated may seek both to establish their legitimacy andsolidify a popular constituency by rulings on individual rights claims againstthe government.58 To the extent that individual rights are a greater focus ofjudicial energy one might imagine judges making a greater investment incomparative learning in those areas. Moreover, it may be that the media, bothgeneral and scholarly, of acquiring knowledge have focused more on individualrights issuesthe death penalty, abortion, free speechand that it is thus easierto gather information about those issues than about issues of structure.But I want to suggest that a further explanation may lie in the nature ofcomparative constitutional methodology, one that itself imposes certain cautions and limits on the usefulness of federalism cases to jurists, though offeringserious insights to scholars and on some occasions to judges. First, let me makea point about the comparative method more generally: that it requires a degreeof consistent and critical skepticism about (a) the choice of categories of comparison and (b) the context of interpretive questions. By skepticism about thechoice of categories, I mean to suggest that we must be careful not to assumethat a term taken to represent a particular legal category, such as federalism orissue, such as abortion, necessarily has the same constitutional, social, andpolitical meaning in different countries. Federalism in Europe may be takento refer to increased centralization of authority;59 in South Africa, to meandevolution of power to white controlled areasand thus one must not assumethat statements about federalism in those polities can be simply translatedinto U.S. constitutional disagreements, where federalism is often invoked bythose arguing for greater protection of the powers of the subnational units. As acategory, federalism might refer to a devolutionary process, or to centralizingphenomena, or might instead refer to a more stable existing governmentalarrangement. Abortion in Ireland is not only about its availability withinIreland, but also about freedom to travel to have an abortion elsewhere and<www.icj.org> (visited April 30, 2003); International Association of Judges, which describesitself as having as its main aim ... to safeguard the independence of the judiciary, as an essential requirement of the judicial function and guarantee of human rights and freedom. available online: <www.iaj-uim.org/ENG/frameset_ENG.html> (visited April 30, 2003).58. See Bruce ACKERMAN, The Future of Liberal Revolution, (New Haven, CT: Yale University Press, 1992) at 106-107; Laurence R. HELFER and Ann-Marie SLAUGHTER, Towarda Theory of Effective Supranational Adjudication, (1997) 107 Yale L.J. 273 at 301-302.Note, though, some of these courts begin with jurisdictions primarily or only to considerinter-governmental claims. See e.g. Constitution of the Fifth French Republic of 1958,art. 61(2) (parties authorized to bring constitutionality of a statute before the ConseilConstitutionnel are limited to the President, the Prime Minister, the heads of the two houses ofparliament, or a group of 60 members of either house of Parliament); art. 41 (authorizing theGovernment to seek review of proposed legislation deemed to trench on presidential powers);and art. 37 (providing for government petitions to declassify laws).59. See Robert HOWSE and Kalypso NICOLADIS, Introduction, The Federal Vision, Levelsof Governance and Legitimacy, in Kalypso NICOLADIS and Robert HOWSE, eds., TheFederal Vision: Legitimacy and Levels of Governance in the United States and the EuropeanUnion (New York: Oxford University Press, 2001) at 8-9.

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about commercial advertising of abortions.60 This raises the question whether

those engaged in the study of comparative constitutional law should comparethe Irish constitutional law relating to abortions to U.S. and Canadian abortioncaselaw, or should we rather compare it to caselaw on freedom to travel or onthe scope of legislative jurisdiction over citizens acts outside the boundaries ofthe state? As to the importance of context in comparisons, consider how, withrespect to the issue of abortion, some courts have made very strong claims thathistorical context should influence decision on this individual rights question.The German Constitutional Court, for example, invoked the history of Naziabuses to support a criminal ban on consensual abortions; likewise, it invokedthe genocide against Jews in Germany in World War II as a basis to upholdrestrictions on speech (Holocaust denial) that might be protected in othernations.61 And the political, social and constitutional context of social servicesfor healthy pregnancies and care of children might influence ones views on thedegree to which abortion regulations impermissibly impinge on individualautonomy. For these reasons, in almost any field of comparative constitutionallaw, scholars and jurists must be cautious and sensitive to context in evaluatingthe meaning of comparative materials and their relevance to particular comparative questions.Turning now to federalism, my suggestion here is that federalism questions are particularly likely to raise difficult comparability problems, for tworelated reasons: first, that federalism arrangements are by nature packagedeals; and second, that they are likely to be the result of very specific, historically contingent compromises less capable of being interpreted through theapplication of general transnational principles.1.

what I would call package deals. For example, in the United States, accordingto James Madison,62 the enumeration of powers of the federal government wasonly one of several mechanisms for maintaining a federal balance. The others,to which Madison gave substantial emphasis, included (a) the role of stategovernments in the conduct of elections for federal offices (and the selection ofSenators by state legislatures, a now obsolete provision); (b) the likelihood thatrepresentatives will feel attachments more to their own states than to the nation;and (c) the greater number of individuals employed in state government than60. See Vicki JACKSON and Mark TUSHNET, Comparative Constitutional Law (New York:Foundation Press, 1999) at 174-182.61. See KOMMERS, supra, note 7, at 382-387.62. The Federalist, Nos. 45-46, Jacob E. COOKE, ed. (Hanover, NH: Wesleyan University Press,1961), p. 311-313, 317-318 (James Madison).

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that fixed and regular elections would prevent the federal government frombuilding up systematic extensions of military power over the states.64 Inaddition, we might add to our description of the federalism provisions in theU.S. Constitution the guarantee of equal representation to the states in theSenate; the requirement for both houses of Congress to concur in legislation;the provision that the equal representation of the states in the Senate cannot bemodified by the amendment process without the consent of the affected state;the prohibition on the creation of new states without the consent of state legislatures, thus securing the boundaries of the states; the Senates role in confirming(or not) Supreme Court justices; and the requirement for the ratification ofproposed constitutional amendments by three-quarters of the states, eachacting separately. These features have been identified by some scholars ascontributing to the sturdiness of U.S. federalism.65The U.S. constitution is not unique in the degree to which federalismpermeates many aspects of the structural arrangement.66 Allocations or enu63. According to the 2000 Census data, total federal civilian employment (full-time and parttime) was 2,899,363 (full-time employment only was 2,425,898). Public employment (fulltime and part-time), for state governments alone was 4,877,420. Public employment forstate and local governments was 15,077,703 in full-time equivalent employment. By anymeasure, the numbers of federal employees in civilian employment are dwarfed by thoseemployed at the state and local government level. United States Bureau of Commerce,United States Census 2000" U.S. Census Bureau, online: <http:// www.census.gov>.64. The Federalist No. 46, supra, note 62, at 320-321 (James Madison).65. See e.g. Richard BRIFFAULT, What About the Ism? Normative and Formal Concerns in Contemporary Federalism, (1994) 47 Vand. L. Rev. 1303; Vicki C. JACKSON, Federalism andthe Uses and Limits of Law, (1998) 111 Harv. L. Rev. 2180. Indeed, some scholars have goneso far as to argue that judicial review of Congress compliance with enumerated powers was notcontemplated in the founding. See e.g. Larry D. KRAMER, Foreword: We the Court, (2001)115 Harv. L. Rev. 4. As will be discussed further below, individual rights provisions of constitutions may also be understood as systemic in character (and the result of compromise); the claimhere is that federalism related provisions are likely to be more so.66. The same can be said for Canada, Germany, and other federal nations. It bears noting thateach state in the United States has its own constitution. A full account of federalism packages might well include the permissible and actual variations in governance among thesubnational units, a subject beyond the scope of this paper. Analysis of the influences andrelationships of the state and national constitutions would be complex. For differing views,see e.g. JACKSON, supra, note 19, at 2217 n. 176 (noting the possibility of institutionalisomorphism to produce institutional replication at different levels of governance); RobertWILLIAMS, State Constitutional Law: Cases and Materials, 3rd ed. (New York: MatthewBender & Company, 1999) at 663 n. 7 (noting variations among state constitutions, but alsonoting a lack of innovation in area of separation of powers); David BARRON, The Promiseof Cooleys City: Traces of Local Constitutionalism?, (1999) 147 U. Pa. L. Rev. 447(emphasizing the importance of local governments to constitutional freedoms); DanielRODRIGUEZ, State Constitutional Theory and Its Prospects, (1998) 28 N.M. L. Rev. 271(arguing for a distinct theory of state constitutional law); G. Alan TARR, State Constitutional Politics: An Historical Perspective, in G. Alan TARR, ed., Constitutional Politics inthe States: Contemporary Controversies and Historical Patterns, (Westport, CT.: Greenwood Press, 1996) at xiii, xvi (noting the influence of federal law on state constitutional politics).

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merations of powers in federal systems show considerable variations. Moreover, federal constitutions often include related prohibitions on the conduct ofeither or both of the subnational and national units, designed to protect interestsof other constituent parts and their members, even in the absence of moregeneralized bill of rights.67 One example from Canadas constitutional historyis offered by the provisions for minority religious education in CanadasConstitution Act, 1867.68Significant differences exist not only as to allocations and prohibitions ofpowers, but also in the institutional structures of federal systems. Most federalsystems have an upper house that is connected in some way to the interest of thesubnational units, but the nature of the representation differs significantly, asdoes the scope of the upper houses role. In Canada, the Senate is far weakerthan in the United States;69 in Germany, the Bundesrats concurrence is required for many, though not all, types of federal legislation.70 Federalism intersectsas well with the division and allocations of legislative and executive power. InGermany, it is the right of the subnational governments to administer mostfederal laws; in the United States the federal government is prohibited fromrequiring the subnational units to carry out federal laws.71 Some have arguedthat presidentialism and divided government provide an added security forfederal systems by offering subnational units multiple locations of nationalpower in which to voice and express disagreement.72 Others would suggest thatparty organization in proportional voting systems may provide compensatingmechanisms for the expression of disagreement.73 The point is that the balanceof power on federalist issues may vary depending on the division of legislative67. See e.g. U.S. Constitution, art. I 9 (prohibitions on Congress), 10 (prohibitions on states).For an obsolete (and morally discredited) protection of rights in slave trading, of primarilysectional interest, see art. I 9(1) (barring Congress from prohibiting the importation of slavebefore 1808).68. Constitution Act, 1867 (U.K.), 30 and 31 Vict., c. 3, s. 93, reprinted in R.S.C. 1985, App. II,No. 5 [hereinafter Constitution Act, 1867].69. Canadian senators are appointed by the national government, rather than being elected in theprovinces. See Constitution Act, 1867, supra, note 68, s. 24 (appointment by the GovernorGeneral); Peter W. HOGG, Constitutional Law of Canada (Scarborough, ON: Carswell,1997) at 9.4(c) (noting the convention by which cabinet selects the senators appointed by theGovernor General).70. See German Basic Law (Grundgesetz fr die Bundesrepublik Deutschland), art. 77, 84.71. See Printz, supra, note 50; see also Daniel HALBERSTAM, Comparative Federalism andthe Issue of Commandeering, in NOCOLADIS and HOWSE, supra, note 59 at 213-215,227-228, 235-238, 242 (arguing that commandeering may be empowering, rather thandisempowering, to subnational units as compared with directly effective national law especially where subnational governments have corporate representation in enacting laws thatsubnational governments carry out).72. Thomas FLEINER, Commentary on Swiss Federalism, in Robert A. GOLDWIN et al.,eds., Forging Unity Out of Diversity: The Approaches of Eight Nations (Washington D.C.:American Enterprise Institute for Public Policy Research, 1989) at 244.73. See HOROWITZ, supra, note 25 at 651-652 (noting substitutability of electoral changes (forexample, those aimed at producing multiethnic parties or multiethnic sharing of posts) withterritorial realignments to create an incentive structure to defuse ethnic conflict.)

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and executive power and on the form of voting systems employed. Differentstates constitutional commitments to federalism may also vary, from provisions treating its federal nature as essentially non-amendable74 to approachesthat permit substantial central government control over the makeup and powersof the constituent parts.75 Yet each of these aspects interacts with other aspectsof the federal structure together to form the constitutional infrastructure for theoperation of constitutional federalism.762.

Historically Contingent Political Compromises

Not only are constitutional federalism arrangements peculiarly interdependent upon each other, but they are also particularly likely to reflect politicalcompromises between existing power holders. They are thus in some sense notlikely to be quite as principled as provisions for individual rights, althoughrights provisions may result from compromise as well.77 This is an empirical(and more speculative) claim than the first, but supported by the followingtentative observations. Constitutions are created by, or require the approval of,existing power holders. Existing power holders have strong incentives to beable to envision present and future balances and shifts of power depending ondifferent structures of governance, and thus constitution drafting may be likelyto respond to their concerns.78 An interesting and particularly clear example74. See e.g. U.S. Constitution, Art. V (prohibiting departure from rule of equal suffrage for eachstate in the Senate by amendment procedure without consent of the state involved); GermanBasic Law, GG , art. 79(3) (prohibiting amendments to the Basic Law that affect the divisionof the Federation into Lnder, their participation in the legislative process, or the principleslaid down in the chapter on Basic Rights or of art. 20, which inter alia states that Germanyshall be a democratic and social federal state in which all public authority emanates fromthe people) [Official translation as of March 1995].75. See e.g. Constitution of India, ss. 3 and 4 (authorizing the national Parliament to change stateboundaries and to make provision for representation in state legislatures); s. 168 (specifyingwhich particular states shall have unicameral or bicameral state legislatures).76. See In Re Certification of the Constitution of the Republic of South Africa, [1996] (4) S. Afr.L.R. 744 at 890 (stating that there are multiple factors which have to be balanced in decidingwhether the ultimate package of provincial powers under the [proposed final constitution] issubstantially inferior to, or less than, that which is accorded to the provinces in the InterimConstitution).77. See e.g. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at 261-262 (suggesting thatprovisions in Constitution Act, 1867 protecting rights to public support of religious educationfor specified minorities were historical compromises that also represented a broader principle related to the protection of minority rights). Consider whether the notwithstandingclause of the Canadian Constitution might be regarded both as a specific historic compromiseand as part of a complexly principled structure for the enforcement of rights. See CanadianCharter of Rights and Freedoms, supra, note 28. For different views, see e.g. Mark TUSHNET, Policy Distortion and Democratic Debilitation: Comparative Illumination of theCountermajoritarian Difficulty, (1995) 94 Mich. L. Rev. 245 at 278; Lorraine WEINRIB,Canadas Constitutional Revolution: From Legislative to Constitutional State, (1999) 33Isr. L. Rev. 13 at 31-32.78. Note here that power elites involved directly in drafting may be better able to determine theeffects of structural rules than general taxpayer-citizens, even though citizen interestin constitution drafting may be higher than interest in ordinary legislation. See JonathanR. MACEY, Promoting Public-regarding Legislation Through Statutory Interpretation:

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arose from a constitution-making process to convert a federal to a unitary state,

when the Czech Republic provided for the existence of a bicameral legislature,including a Senate, upon the dissolution of the Czech and Slovak FederalRepublic, in part to accommodate concerns of existing deputies in the FederalAssembly of the dissolving federation.79That the drafters can envision the consequences of power-allocatingprovisions for their own future does not necessarily mean that they will notproduce well-designed institutional structures, but it does suggest that theinstitutional design will be intimately connected with existing (and projected)distributions of power. Is this any different than in the crafting of bills of rights?I would suggest that it is, for some (though not all) kinds of protections typicallyaddressed in bills of rights. Rights designed to secure freedom from torture,freedom of expression, or freedom of religion protect aspects of human personality that are far more widely shared than the political distribution of power.Other individual rights, e.g., those relating to property, may be meaningfullyenjoyed across a smaller spectrum of a population, depending on economicsituations and understandings of property. But because many of the protectionsoffered by a bill of rights appear to be very directly related to human flourishinggenerally, it may be easier both for drafters and for a popular general constituency, whose consent may be required for constitution-making, to envision theiroperation in a variety of settings and to predict the scope of what is desirable.Moreover, at the same time that drafters of structural provisions have strongpersonal incentives to consider their future consequences,80 both the designand approval of such provisions may suffer from some of the limitationsobserved in experimental psychology on our ability to extrapolate readilyfrom the rules of the game to the consequences for success in future circumstances.81 Although there may well be differences in this regard between thoseAn Interest Group Model, (1986) 86 Colum. L. Rev. 223 at 242-250 (arguing that ordinarycitizens have a strong incentive to favor the adoption of constitutional mechanisms thatrestrain elected officials from enacting special interest legislation); Bruce ACKERMAN, WeThe People: Transformations (Cambridge, Mass.: Belknap Press of Harvard UniversityPress, 1991) at 4-5 (arguing that in constitutional moments, people have greater interest inand regard for public law than in times of ordinary politics).79. See David FRANKLIN, Divorce Proceedings Continue Between Czechs and Slovaks; Federal Bodies Lose Relevance, East European Constitutional Review, (Fall 1992) 1 E. Eur.Const. Rev. 14; Czechoslovakia, (Spring 1992) 1 E. Eur. Const. Rev. 3; Czech Republic,(Fall 1992) 1 E. Eur. Const. Rev. 4; STEIN, supra, note 15, at 286. Ironically, the Senate wasnot filled for three years after adoption of the 1993 constitution. See Ivo SLOSARCIK, TheReform of the Constitutional Systems of Czechoslovakia and the Czech Republic in 19902000, (2001) 7 Eur. Pub. L. 529 at 542 (noting the Senate was not established until 1996).80. One could also imagine that there would be much harder bargaining and, given the shadow ofuncertainty regarding future elections, more actual deliberation about structural allocationsof power than about the identification and listing of what may at the time of drafting be moreabstract protections of rights.81. See Avishalom TOR and Max H. BAZERMAN, Focusing Failures in Competitive Environments: Explaining Decision Errors in the Monty Hall Game, the Acquiring a Company Problem, and Multi-party Ultimatums, Harvard NOM Working Paper No. 02-15 at 3-4 (August21, 2003), available on SSRN online at <http://papers.ssrn.com/so13/papers.cfm?abstract_

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who have enough power to be drafting constitutional provisions and members

of the general public, this observation suggests that understanding the connection between the principles at work in structuring governance (i.e., the rules ofthe game) and their results may be more difficult for both groups, and thatthe drafters will have some self-interested incentives at work in the design ofgovernance structures that may differ from those of the general public.The (admittedly tentative) claim that federalism provisions are likely toreflect hard-bargained-for compromises, and thus to be less subject to generalreasoning from first principles, is subject to challenge. It might be argued, forexample, that all legal texts represent some degree of compromise amongstthose empowered to deliberate and enact them.82 Even with respect to individual rights, it might be argued that those holding enough power to draft a constitution may believe themselves to be in less need of protection than others.Moreover, it might be objected, the nature of constitution-drafting will vary toomuch in different circumstances to warrant such generalizations. For instance,the drafters of incremental amendments may bring more of a perspective of anongoing government. By contrast, major constitutional change during periodsid=310200> (finding that decision-makers fail to pay sufficient attention to the rules of thegame and the likely decisions of other parties in making decisions in competitive environments). The authors suggest that there is a tendency not to fully consider indirecteffectssuch as the responses of others and the rules of the gamewhich are typicallyoutside of [peoples] focus (ibid. at 4). According to the authors, people tend to focus on onlysome of the relevant information to a decision, to overweigh that value and to engage in aradical simplification of the environment, acting as if a more direct path exists between theirdecisions and the outcomes they are likely to obtain (ibid). Some caveats: A single set ofexperimental data cannot by itself be taken to establish any proposition. Even if results arereplicated, moreover, a single datum point about cognitive errors or distortions in humandecision-making does not of itself support a theory of either federalism, or constitution-making. See William ESKRIDGE and John FEREJOHN, Structuring Lawmaking to ReduceCognitive Bias: A Critical View, (2002) 87 Cornell L. Rev. 616 (expressing skepticismabout the predictive capacity of current knowledge of cognitive psychology and governmental design, but arguing that awareness of cognitive limits supports designs which involve multiple bodies in decision-making as checks on error). Yet the data are suggestive of some of thebarriers to successful institutional design of governmental structures designed to endureacross generations and are not inconsistent with observations of cognitive limitations in thedesign of other complex systems. See Jeffrey RACHLINKSI, Heuristics and Biases in theCourts: Ignorance or Adaptation?, (2000) 79 Or. L .Rev. 61 at 63 (noting that [e]xperts whodesign such systems commonly fail to foresee ways in which complicated processes can goawry). To the extent that repetitive decision-making and feedback may reduce certain kindsof cognitive errors, constitution drafters may be at a disadvantage only partially compensatedby consideration of comparative data. See Cynthia FARINA and Jeffrey RACHLINKSI,Cognitive Psychology and Optimal Government Design, (2002) 87 Cornell L. Rev. 549 at559-560 (noting the importance of experience in reducing cognitive defects in judgment).82. Cf. MACEY, supra, note 78, at 232-233, 251, 261-268 (suggesting that judges may lack thecapacity for distinguishing public from private regarding statutes and favoring general interpretive approaches to resolve any ambiguities in the statute consistently with the stated public-regarding purpose in order to reduce incentives for special interest bargaining andenhance effect of public-regarding elements in statutes). Per Maceys reasoning, then, itmight be denied that constitutional texts can be distinguished from each other as either theproduct of compromise or principle and thus that one or another form of interpretation asa general matter should follow.

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of intense crisiswhich, as Jon Elster suggests, may likely be the case whenentirely new constitutions are produced83may be impelled by certain formsof prior abuse or failures of governance leading to crises, which could in theory motivate the focus of constitution-drafting in ways that may or may not correspond to the structure/rights classification suggested above.Yet there is an additional and important reason to believe that the meaning of particular federalism provisions are less likely to be illuminated throughthe kind of transnational judicial constitutional discourse discussed earlier. Thesubject area of most modern constitutions bills of rightsat least in their mainoutlinehave considerably greater degrees of transnational consensus behindthem.84 International human rights norms may be playing the role of an archetype against which modern constitution drafters take their measure.85 In contrast to the profusion of human rights norms in international law, internationallegal norms on government organization are far less developed. While an international legal norm favoring democracy may be emerging, international lawon governmental organization and structurethe lifeblood of federalismisinchoate at best.86 As I have suggested elsewhere, these differences may reflect83. See Jon ELSTER, Forces and Mechanisms in the Constitution Making Process, (1995) 45Duke L.J. 364 at 370 (new constitutions almost always are written in the wake of a crisis orexceptional circumstance of some sort).84. See McCRUDDEN, supra, note 43 (noting that most post-World War II constitutions have acommon core of human rights provisions that are strikingly similar and often derive frominternational or transnational human rights conventions). Of course, constitutions may alsohave rights protections that lack many counterparts in other constitutions or in internationalhuman rights law. See e.g. U.S. Constitution amend. II (right to bear arms); the Constitutionof Mexico, art. 10 (citizens right to have lawful weapons subject to prohibitions by law); theConstitution of Venezuela (1999), art. 324 (only the state can possess arms of war and themanufacture, possession, use and trade of other weapons is to be regulated by the NationalArmed Forces in accordance with law).85. These international human rights norms are reflected in, e.g., the Universal Declaration ofHuman Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948); the ICCPR, supra, note 21; theInternational Covenant on Economic, Social and Cultural Rights, supra, note 21; and theConvention on the Elimination of All Forms of Discrimination Against Women, G.A. Res.34/180, U.N. GAOR 34th Sess., Supp. No. 46, U.N. Doc. A/34/180 (1979), 1249 U.N.T.S. 13,entered into force September 3, 1981. Sujit Choudhry, who classifies judicial uses of comparative constitutional law as universalist, dialogic, or genealogical, observes that the most widespread use of universalist forms of comparative constitutional analysis involves individualhuman rights. See CHOUDHRY, supra, note 36, at 887. This phenomenon, he says, islargely a function of the fact that the globalization of the practice of modern constitutionalismhas principally involved the spread of the notion that individual rights should be legally protected against executive and legislative encroachment (ibid.).86. See Thomas M. FRANCK, The Emerging Right to Democratic Governance, (1992) 86 Am.J. Intl L. 46. For a recent description of the status of internal democracy as a transnational normwithin the OAS, see Enrique LAGOS and Timothy D. RUDY, The Third Summit of the Americas and the Thirty-First Session of the OAS General Assembly, (2002) 96 Am. J. Intl L. 173.For discussion of whether the ICCPR requires popular participation in domestic constitutionmaking, see Thomas M. FRANCK and Arun K. THIRUVENGADAM, Norms of International Law Relating to the Constitution Making Process, (2003) [unpublished, archived withauthor]. See also Vivien HART, Democratic Constitution Making, (2003) U.S. Inst. for PeaceRep. No. 107, online: United States Institute for Peace <http://www.usip. org/pubs/specialreports/sr107.html>.

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the degree to which federalist structures are farther removed from commonhuman experiences than are the subjects of many bill of rights provisions:The reasons for the relatively greater specificity about individual rights thanabout forms of governance [in international legal conventions] may have to dowith the inescapable ubiquity of human beings as a central concern of any systemof governance, as compared to the variability of the particular forms of politicaland social organization addressed by constitutions.87

This variability may or may not arise from differences in the degree towhich individual rights can be framed and understood in principled terms,but the variability surely does relate to the opening point about the distinctivelyinterdependent, or package like character, of federalism as affecting thenature and value of transnational learning from doctrine.88 And even if onecould agree on no underlying cause for the greater development of internationalhuman rights norms other than some form of historical circumstance that laydown a path of development early on,89 the presence of these internationalnorms may well be contributing to the sense of what Justice Sachs has referredto as a world jurisprudence of constitutional rights.90C. IMPLICATIONS: LIMITS ON COMPARISON OFENUMERATED POWERS IN FEDERAL SYSTEMSNow to apply the argument and explore why we may not see as manyfederalism cases as individual rights cases in which a constitutional courtsdecision on an issue of domestic constitutional law appears to be informed by87. See JACKSON, supra, note 5 at 273 n. 207. What it means to be human, in the sense of whatindividual values and aspirations are most highly regarded, may be contingent to some degreeon the organization of different cultures, but I suppose my claim above must be that there is amore obvious common core of values or needs for human well being. See NEUMAN, supra,note 35, at 1868 (arguing that fundamental rights have normative power [that] does notderive solely from their enactment as positive law that can support especially broadranging and rich debate ... across national borders).88. It could be argued that individual rights should also be understood as related to each other insimilar packages, e.g., that first amendment free speech rights are dependent on criminalprocedure protections (that is, for those accused of speech-related conduct that is alleged toviolate criminal laws). Yet such packages of rights are not as interdependent, insofar as part ofwhat those rights provisions protect, have inherent almost pre-political worth given certainconceptions of what it means to be a human being. My claim, in any event, is only one ofrelative degree, because there are ways in which individual rights are parts of a system, asThomas Emerson titled his book. See Thomas I. EMERSON, The System of Freedom ofExpression (New York: Random House, 1970).89. For discussion of path dependence in common law adjudication and references to the broaderliterature on path dependence, see Oona A. HATHAWAY, Path Dependence in the Law:The Course and Pattern of Legal Change in a Common Law System, (2001) 86 Ia. L. Rev.601.90. See Albie SACHS, Social and Economic Rights: Can They Be Made Justiciable?, (2000)53 S.M.U. L. Rev. 1381 at 1388.

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the treatment of a similar issue by other nations constitutional courts. I will

suggest below that, because federal constitutional arrangements are typicallyput together as a compromise among existing power holders and becausethese arrangements are typically part of a set of inter-related arrangements (apackage deal), it is difficult to identify particular power-allocating provisionslikely to be the subject of constitutional interpretation that are sufficientlycomparable for the decision of other constitutional courts to be helpful.91 Anexample will illustrate this claim.Section 91 of Canadas Constitution Act, 1867 (formerly the BritishNorth America Act), allocates to the national government legislative authorityover the Regulation of Trade and Commerce.92 By itself, this provisionbears more than a passing resemblance to the provision of the United StatesConstitution giving Congress the power to regulate Commerce with foreignNations, and among the several States, and with the Indian Tribes.93 Similarkinds of issues, moreover, have arisen in the two countries, in part as new technological capacities and new concerns result in similar legislative responses.One might think, then, that the scope of the respective commerce clauseswould beneficially be determined in part by considering the reasoning of theother countrys courts on analogous issues.Yet to assume that U.S. interpretations of the scope of national powershould be informed by Canadas, or vice versa, would be to assume that otherarguably related differences do not matter. There are significant differences inthe historical acquisition of political and legal independence, which in Canadawas a very gradual process in contrast to the sharp break from Britain thatoccurred in the United States,94 as well as in the timing and process by whichthe constitution in each country developed.95 Canadian federalism has, fromits inception, been marked by a commitment to accommodate the two majorlanguage communities of its European settlers, which has influenced interpretations of federal and provincial powers.96 But even a jurist unfamiliar with91. In this paper I do not explore but merely note the possibilities of comparative learning aboutinterpretive methodology in general.92. Constitution Act, 1867, supra, note 68, s. 91(2).93. U.S. Constitution, art. 1 8. The British North America Act in many respects sought to createin Canada a more centralized national government than that created by the original U.S. Constitution, an intent arguably undermined by subsequent interpretations by the Privy Council.See HOGG, supra, note 69 at 5.3(a), (c).94. Supreme Court of Canada decisions, for example, were subject to Privy Council review until1949. See HOGG, supra, note 69 at 1.2.95. See HOGG, supra, note 69 at 1.2 (describing the 1867 Act as one that left much of Canadasconstitutional law in other sources, including unwritten conventions, and asserting that thereis no single document in Canada comparable to the U.S. Constitution).96. See e.g. Canada (Attorney General) v. Ontario (Attorney General), [1937] A.C. 326 (CanadaP.C.) at 351 (noting the importance to Quebec of being able to control its distinctive jurisprudence in explaining the courts restrictive interpretation of national legislative power inCanada).

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history and looking only at the written constitutional texts themselves wouldhave reason to be cautious about assuming that the similarity of two clausesmeans that they should be interpreted similarly. A number of features of theCanadian and U.S. constitutional documents should raise caution. First, thereis the specification in section 92 of Canadas Constitution Act, 1867 of thecompetencies of the provinces. This very limited specification has generated asubstantial body of Canadian caselaw limiting the scope of national power (forexample, to prohibit federal labeling requirements for beer).97 The U.S. Constitution contains no reservations of specific regulatory powers to the states analogous to section 92.98 Moreover, as the 1867 Act reflects, the Canadian Senate isa much weaker body than the U.S. Senate. Rather than being independentlyelected, members of the Senate are appointed by the federal government(for life or until age 75)99 and thus may be deemed structurally less likely tovigorously represent the interests of either the provincial governments or of thepeople of a province. This stands in contrast to the U.S. Senate, which in its first150 years was selected in a manner determined by each state legislature, andmore recently, by popular election. To the extent that the structure of nationalgovernment functions to buttress the role of the subnational units, Canadianfederalism is arguably weaker and might need to rely to a greater extentthan U.S. federalism on judicial enforcement of the constitutional division ofpowers.Finally, not only is the Senate in Canada weaker than in the UnitedStates, but Canada relies on a parliamentary rather than presidential system ofgovernance.100 The consequences may be that it is easier to enact legislation atthe national level than in a divided power system. The hurdles that nationallegislation faces in the United States include three bodiesthe Senate, the97.

98.

99.

100.

See Labatt Breweries of Canada Ltd. v. Canada (Attorney General), [1980] 1 S.C.R. 914.Compare Wickard v. Fillburn, 317 U.S. 111 (1942) (upholding federal price regulation ofwheat grown on a farm for home consumption as within the commerce clause power).See Martha FIELD, The Differing Federalisms of Canada and the United States, (1992) 55Law & Contemp. Probs. 107 at 110 (emphasizing this difference). The Tenth Amendment tothe U.S. Constitution is a general residuary clause that does not specify by subject area whatpowers are being reserved to the States, respectively, or to the people.The Constitution Act, 1867 provides that senators are appointed on recommendation of theGovernor General which, by convention, means the cabinet of the existing government.Constitution Act, 1867, supra, note 68, s. 24; see also HOGG, supra, note 69, at 9.4(c) (sostating and also indicating that the Senate has never been an effective voice of regional orprovincial interests in part because of the acceptance that, given its appointive nature, theSenate is subordinate to the House).For recognition in Australia that differences between presidential and parliamentary systemsmay influence interpretation of federalism issues, see Amalgamated Society of Engineers v.Adelaide Steamship Co. (1920), 28 C.L.R. 129 at 145-146, 155 (explaining that U.S. federalism decisions should not guide Australian constitutional decisions because [p]ervading the[Australian] instrument ... [are] two cardinal features of our political system which are interwoven with its texture and, notwithstanding considerable similarity of structural design, ...radically distinguish it from the American Constitution ... One is the common sovereignty ofall parts of the British Empire; the other is the principle of responsible government).

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House, and the Presidenteach of which represents constituencies over a different time period and which may be controlled by different political parties. InCanada, government legislative programs (at least in theory) ought to be easierto get through even in the face of some provincial disagreement.101 This difference might bear on the general methodological question of the degree of deference courts should or should not give to national legislation challenged onfederalism grounds.102Not only does the nature of federal constitutional schemes make theborrowing of constitutional reasoning on similar clauses difficult, but specificallocations of powers in federal systems can vary rather widely as to whetherthey are held at the national or subnational level.103 For example, in Canada thenational government has an explicit power over marriage, while the provinceshave power over the solemnization of marriage.104 In the United States,marriage and family relations are not explicitly referred to in the constitution,but federal courts derived a presumptive ban against considering questions ofdomestic relations, a presumption that is sometimes reflected in broaderassertions that regulation of family law generally is for the states, not thenational government.105 In Canada, the national government has power overcriminal law,106 while in the U.S., the Court has repeatedly indicated that thesubnational units have a general police power, including the power to makecriminal laws.107 These differences are at times (though not always) reflected inthe respective courts decisions and reasoning.101.

102.

103.

104.105.

106.107.

This is necessarily an overly simplified model and does not account for the effects ofdifferences in voting schemes, coalition governments, strength of party discipline, etc. SeeMark TUSHNET, New Forms of Judicial Review and the Persistence of Rights andDemocracy Based Worries, (2003) 38 Wake Forest L. Rev. 813 at 834 (arguing that Canadaonly appears to have fewer veto points for legislation than the U.S. and that the formal lawis misleading).See Vicki C. JACKSON, The Invisible Constitution (2000), [unpublished, on file withauthor]; see Julian N. EULE, Judicial Review of Direct Democracy, (1990) 99 Yale L.J.1503 at 1507, 1525 (arguing that more aggressive judicial scrutiny is required on review ofconstitutional challenges to laws enacted by popular initiative in light of the absence of thefilters provided by the ordinary legislative process).I do not mean to suggest that it is only the nature of the written constitution that has affects onthe development of constitutional doctrine. Differences in politics, history, culture, oreconomics may play important roles in influencing the development of constitutionaldoctrine. See supra, notes 94-96 (noting distinctive aspects of Canadian history andpolitics). My point is that even where constitutional texts allocating federal powers appearsimilar in language, surrounding and related provisions may provide grounds for divergentresults.Constitution Act, 1867, supra, note 48, s. 91(26), 92(12); see also HOGG, supra, note 69, at26.1, 26.3-26.8See Ankenbrandt v. Richards, 504 U.S. 689 (1992) (asserting that a domestic relationsexception would be read into the federal courts jurisdiction over diverse party cases, excluding federal courts from deciding questions of divorce, child custody, and alimony).Constitution Act, 1867, supra, note 68, s. 91(27).See United States v. Lopez, 514 U.S. 549 (1995) at 561 n. 3.

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The Supreme Court of Canada recently upheld, as within the federal

criminal power, a national gun licensing and registration law that had beenchallenged on federalism grounds as intruding on the provinces power overProperty and Civil Rights.108 Despite arguments that registration of guns wasanalogous to registration of property such as cars (which was a provincialmatter), the Supreme Court concluded that in pith and substance the legislationwas directed at a proper end of the criminal law, that is, public safety.109In United States v. Lopez,110 the U.S. Supreme Court invalidated a federallaw prohibiting gun possession near schools, on the grounds that it was insufficiently connected to the federal power over interstate commerce and wasessentially a regulation of local matters, including violent crime. It might bethought that while the results in these two cases differed, they illustrate the benefits of comparative learning on federalism issues insofar as the courts in bothcases defined arguably similar regulation (of gun possession) as criminal incharacter. But the Supreme Court of Canada did not hold that the mere inclusion of guns as the object of regulation rendered the law criminal in substance.Rather, it looked at the nature of the justifications offered in support of the federal law and concluded that they were properly directed at avoiding the kinds ofdangers to which the criminal law was addressed. Moreover, under its reasoning, the provinces might also be able to have registration systems or otherwiseregulate guns.111 The decision in Lopez, by contrast, especially when readtogether with later caselaw (particularly United States v. Morrison),112 impliesthat one level of governmentthe national governmentwould lack power toregulate the subject matter because of its category, regardless of the reasons.113The Supreme Court of Canadas reasoning led to upholding a national lawbased (at least in part) on deference to the legislatures basis for action,114 whilethe U.S. Supreme Court in Lopez appeared to be less deferential.115 Finally, theCanadian Court emphasized the overlap in federal and provincial powers,108.109.110.111.

112.113.

114.115.

Reference Re Firearms Act, [2000] 1 S.C.R. 783.

Ibid., at 801, 804-805, 808-813.Supra, note 107.See supra, note 108, at 814 (noting that the federal act did not significantly hinder the abilityof the provinces to regulate the property and civil rights aspects of guns; Assuming (without deciding) that the provincial legislatures would have the jurisdiction to enact a law inrelation to the property aspects of ordinary firearms, this does not prevent Parliament fromaddressing the safety aspects of ordinary firearms); see HOGG, supra, note 69 at 16.4(a)(discussing Canadian federalism cases in which, notwithstanding federal legislation onparticular topic, provincial legislation on the same topic was upheld in the face of paramountcy challenges where it is possible to comply with both).529 U.S. 598 (2000) (holding that Congress lacked power to enact a civil rights remedyauthorizing suit for damages against perpetrators of gender-motivated assaults).See Judith RESNIK, Categorical Federalism: Jurisdiction, Gender, and the Globe, (2001)111 Yale L.J. 619 (arguing that the Court erred both in constructing categories of federaljurisdiction and in concluding that the Violence Against Women Act provision was outsidethe scope of federal competence).See supra, note 108, at 797 (actual efficaciousness of the law is not relevant to the Courtsdivision of powers analysis but is a matter for Parliament).See Vicki C. JACKSON, Federalism and the Court: Congress as the Audience?, (2001)574 Annals Am. Acad. Pol. & Soc. Sci. 145 (noting the mistrust of the national legislativeprocess reflected in the U.S. Courts recent federalism cases).

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such that both levels of government could regulate the same subject. The U.S.Court, by contrast, seemed driven by a desire to use constitutional doctrine toidentify activity that the States may regulate but Congress may not.116The differing allocations of specific powers, then, pose additional challenges to the development of a transnational discourse on federalism. Althoughmethodological questions (e.g., should courts presume a fair degree of concurrency of national and subnational powers or instead seek clear lines of separation) may be shared, their answers and the analysis of particular powerswill frequently be conditioned by the differences in what powers are allocatedto which level, as well as the broader questions of interdependent structuresidentified above.D. COMPARATIVE CONSTITUTIONAL FEDERALISM ANDOTHER QUESTIONS OF STRUCTUREIs comparative experience of more relevance to issues not involvingthe interpretation of particular constitutional texts, but deeper questions ofstructure? Such issues were presented in the U.S. Supreme Court decision inPrintz v. United States117 and in Canadas Reference re Secession of Quebec.118On these issues, comparative constitutional experience can be quite illuminating on what is at stake even if it does not suggest answers to particular constitutional questions.1.

Commandeering

The question in Printz was whether federal law could validly require stateand local officials to perform background checks on gun purchasers for a 5-yearperiod until a national federal system for background checks was available. Themajority held that it could not, because this was a form of prohibited executivecommandeering, i.e., federal mandates compelling state officials to administera federal regulatory program. Justice Breyer, in dissent, argued that since theU.S. Constitutions text was silent on the issue, and there was no dispositivecaselaw, European models of federalism could be consulted as bearing on theconsequences of permitting or prohibiting such laws. Breyer concluded thatother federal polities (including Germany) contemplate or require that nationallegislation be implemented by the subnational entities, and that this practicesuggested that the federal law challenged in Printz was not incompatible withhealthy forms of federalism. Justice Scalia, writing for the Court, disagreed andargued in part that comparative experience was relevant to making, but not tointerpreting, a constitution.119116.117.118.119.

COMPARATIVE CONSTITUTIONAL FEDERALISM: ITS STRENGTHS AND LIMITS

Justice Breyers basic point on the value of comparative learning in

understanding the consequences of different interpretations is no doubt welltaken. Yet, as Justice Breyer anticipates,120 there are difficulties in relying onthe German experience to develop useable U.S. doctrine. First, unlike the U.S.Senate, the German Bundesratwhose approval is required for any law thathas administrative enforcement responsibilities for the subnational unitsismade up of representatives of the subnational governments who are likely to beattentive to the financial burdens that might be imposed on their governments.Second, the German Basic Law, unlike the U.S. Constitution, requires effortstowards the equalization of the resources of the subnational units.121 Thus, thethreats posed by unlimited federal commandeering to state budgets and statecontrol of state legislative agendas in the U.S. are perhaps greater than inGermany.122 In evaluating the consequences of commandeering, then, differences in other aspects of the system of constitutional federalism might matter; auseable doctrine in the U.S. context would need to take account of thesesystemic differences. In this setting, comparative constitutional experiencewith federalism may help formulate a set of questions for domestic constitutional interpreters,123 but is likely to be of less assistance in suggestingwhat the best answer for a particular polity would be.2.

The Question of Secession

Yet all these cautions and caveats are not intended to negate the potentialfor the study of comparative constitutional federalism to assist constitutionalists in resolving some kinds of recurring questions, especially those that go tostructural design of the framework for governance in a federal system. JusticeScalias position in Printz assumes that there is a clear demarcation betweeninterpreting and making a constitution. I have previously challenged the120.

121.

122.

123.

See Printz, supra, note 50, at 977 (Breyer, J. dissenting) (acknowledging that there may beimportant differences between the United States, on the one hand, and Switzerland,Germany, and the EU, on the other). Justice Breyer did not discuss arguably analogousCanadian case law. See e.g. Peel v. MacKenzie, [1982] 2 S.C.R. 9 (holding that Parliamentlacked the power to require municipalities, created by the provinces, to pay for certainservices for juveniles convicted of crimes).See generally KOMMERS, supra, note 7, at 75, 82-83, 90-102. For a discussion of how constitutional comparison may be illuminating on the commandeering issue in Australia, Canada, and the U.S., see Cheryl SAUNDERS, Comparing Federal Constitutions, Address atthe Cambridge Lectures (2003), available online <http://www.unimelb.edu.au./cccs/news/archive-centre.html>, under Cambridge Lectures 2003, Cheryl Saunders full paper.See Printz, supra, note 50, at 975-976 (Souter, J., dissenting) (proposing that the permissibility of federal commandeering might depend on the federal governments assumingthe costs imposed on the states).See e.g. HALBERSTAM, supra, note 71. For another countrys treatment of the issue ofcommandeering, see Ex Parte Speaker of the National Assembly; In Re Dispute Concerningthe Constitutionality of Certain Provisions of the National Education Policy Bill No. 83 of1995, 1996 (3) SALR 289 (CC) (distinguishing U.S. anti-commandeering case law to findthat the national government would have power to require provincial ministers to developcertain plans).

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clarity of this distinction.124 Courts sometimes, in effect, have to make a

constitution as they are asked to resolve interpretive questions of constitutionallaw. But perhaps there is some distinction worth considering in the relevanceof comparative constitutional law and practice (at least in the area of federalism)125 between issues that most centrally concern the interpretation of particular constitutional texts, on the one hand, and issues of structural design on theotherwhether those structural decisions are made by political representativesdrafting a constitution or by courts drawing implications from existing constitutional texts and structures. To develop this idea, let me turn briefly to thequestion of secession, as the issue is treated in existing constitutions and as itwas considered in the Reference re Secession of Quebec in Canada.126Like Canada, many successful federal unions have not included specifictextual clauses either waiving or recognizing a right of secession.127 Accordingto historian Kenneth Stampp, for example, the question of whether a U.S. statehad a unilateral right to secede was genuinely uncertain in pre-Civil WarAmerica.128 Current European Union treaty documents as of this writingdo not expressly provide for rights of secession,129 nor do the constitutional

124.

125.126.

127.

128.

129.

See JACKSON, supra, note 5, at 265 n. 187 (arguing that the difference between makingand interpreting law eludes capture in the hard cases, because the Court can be understoodto make law as it interprets the constitution).This discussion might extend to other issues of structure, including what in the United Statesare referred to as separation of powers questions, a possibility to be explored in the future.For a longer treatment of the question of secession and the accompanying literature, seeJACKSON, Comparative Constitutional Federalism and the Transnational Judicial Discourse, (2004) 2 Intl J. Const. L. 91.See e.g. U.S. Constitution; Constitution Act, 1867; and the German Basic Law. A smallernumber of constitutions include language that by implication can be understood to excludeunilateral secessions. See e.g. the Constitution of Australia, preamble (referring to an indissoluble federal Commonwealth); see Constitution of Spain, art. 2 (1978) (The Constitutionis based on the indissoluble unity of the Spanish Nation, and while it is not exactly of afederal character, the Constitution provides for certain autonomous self-governance rights).As one recent survey concludes, in most cases, the constitution is simply silent on thequestion of secession. Patrick MONAHAN and Michael J. BRYANT (with Nancy C.COT), Coming to Terms with Plan B: Ten Principles Governing Secession, (1996) C.D.Howe Institute Commentary 83 at 7.Kenneth M. STAMPP, The Concept of a Perpetual Union, (1978) 65 J. Am. Hist. 5 at 6(comparing the Constitution of 1789 with Articles of Confederation which it replaced andhad provided that the Union shall be perpetual and noting that the unionist case was sufficiently flawed to make it uncertain whether in 1865 reason and logic were on the side of thevictors).See FRANCK, supra, note 20 at 12; Bruno S. FREY and Reiner EICHENBERGER, FOCJ:Competitive Governments for Europe, (1996) 16 Intl Rev. L. & Econ. 315 at 318. Whether(and if so how) member nations could withdraw from the EU appears to be a matter of scholarly debate. See e.g. Paul B. STEPHAN, Accountability and International Lawmaking:Rules, Rents and Legitimacy, (1996-97) 17 Nw. J. Intl L & Bus. 681 at 688 n. 13;Larry Cata BECKER, The Extra-National State: American Confederate Federalismand the European Union, (2001) 7 Colum. J. Eur. L. 173 at 180-181; J.H.H. WEILER, The

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COMPARATIVE CONSTITUTIONAL FEDERALISM: ITS STRENGTHS AND LIMITS

documents of Canada, Australia, or Germany.130 A small number of constitutions have included formal rights of secession, including, for example, those ofEthiopia, the former U.S.S.R., and arguably the former Yugoslavia.131 TheSoviet Unions constitution included a right of secession (in art. 72), whichwas not operationalized by law until 1990.132 It was and remained essentially adead letter (even after enactment of the 1990 statute, which ostensibly permitted secession through cumbersome procedures).133 The newly independentstates of the former Soviet Union achieved their status through mechanisms

130.

131.

132.133.

Transformation of the European Economic Community, (1991) 100 Yale L.J. 2403 at 2412.See Written Question E-2398/01 by Christopher Huhne (Aug 20, 2001), Answer given byMr. Prodi on behalf of the European Commission (Sept. 24, 2001) Official Journal C 40,Page No. 243 (2002) (explaining that the only instance of secession from the EU involvedGreenland, a question settled by treaty, that cannot be seen as a precedent for a MemberState because at the time the situation was declared to be exceptional and because Greenland is not a European State within the meaning of the Union Treaty). For possible opt-outprovisions in a proposed new European constitution, see Draft Treaty for Establishing aConstitution for Europe (June 18, 2003) art. 59, online at The European Convention:<http://european-convention.eu.int/bienvenue.asp?lang=EN> (last visited October 20,2003).See e.g. Gregory CRAVEN, Secession: The Ultimate States Right (Carlton, Vic.: Melbourne University Press, 1986) at 92 (concluding that the Australian constitution implicitlyprecludes secession); see Reference Re Secession of Quebec, supra, note 77 at 239, 248(discussing unwritten constitutional conventions, principles, and rules and noting that theunderlying principles guiding its decision are not explicitly made part of the Constitutionby any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867).See MONAHAN and BRYANT, supra, note 127 (indicating that of the 89 constitutionsexamined, only seven included provisions relating to secession, while another 22 includedlanguage concerning the territorial indivisibility or inviolability of the territory or nation,which by implication might exclude the legality of secession). The authors studied constitutions, federal and nonfederal, that provided for popular referendums on the theory that anyprocedure for secession would involve a referendum or plebiscite. The seven constitutionsthat were identified as having procedures for secession include Austria, Ethiopia, France,Singapore, Saint Kitts and Nevis, the former Soviet Union, and the former Czech and Slovakfederal republic. Of these, Singapores requirement seems less directed at possible secessionthan at loss of sovereignty of Singapore itself (see the Constitution of Singapore, art. 6-8) andFrances provisions appear to relate only to its overseas colonies; compare the Constitutionof France, art. 1 (France as indivisible), with art. 76 (contemplating a vote in New Caledoniafor possible full sovereignty).Constitution of the Former U.S.S.R. (1977), art. 72 (Each Union Republic shall retain theright freely to secede from the USSR).See Law on Procedures for Resolving Questions Related to the Secession of Union Republicsfrom the USSR (Apr. 3, 1990) reprinted in Hurst HANNUM, ed., Documents on Autonomyand Minority Rights (Boston: M. Nijhoff, 1993) at 753 (specifying, inter alia, in art. 2 and 6,that decision to secede must be made by a vote of two thirds of eligible voters in a referendumwithin the seceding entity, but with no campaigning and, in art. 9, that following a successfulreferendum a 5 year transition period may occur). Professor Hannum states that the 1990 lawwas never utilized because [e]vents quickly overtook the cumbersome and lengthyprocedures, which were intended to slow the process of disintegration and in particular, thepending secession of the Baltic states (ibid. at 742); see MONAHAN and BRYANT, supra,note 127, at 8-9, 12 (noting that in many former Soviet Republics a unilateral declaration ofsecession preceded the holding of any referendum).

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a right to secession (Basic Principles I) but federal authorities interpretedthis right as one that could not be exercised unilaterally.134 This did notstop declarations by Slovenia, Croatia, and Bosnia-Herzegovina of sovereignindependence and their recognition by the world community.135 Secession (orseparation) was effected in the former Czech and Slovak Republic withoutclear measures of popular support within each subpart.136 Adoption of legalprovisions on secession (constitutional or statutory) in some settings have beena prelude to relatively quick-thereafter actual secession. It was reported that inlate 1990, Slovenia passed its own constitutional law creating a right to secedefrom Yugoslavia and shortly thereafter did so.137 In Czechoslovakia, a law wasenacted providing for a referendum in 1991, but it was not used as part of thesplit up of the state.138134.135.

136.

137.

138.

HANNUM, supra, note 133, at 761 (citing Yugoslavias third period report to the UNHuman Rights Committee, UN Doc. CCPR/C/42Add.9 (1992) at 4-11).See generally Marc WELLER, Current Development: The International Response to theDissolution of the Socialist Federal Republic of Yugoslavia, (1992) 86 Am. J. Intl L. 569,586-593. Croatia and Slovenia invoked language in the Yugoslav Constitution of 1974,Basic Principles I, para. 1, referring to rights of self-determination, but the central government disagreed that they were unilaterally entitled to secede. See Ben BAGWELL, Yugoslavian Constitutional Questions: Self Determination and Secession of Member Republics,(1991) 21 Ga. J. Intl & Comp. L. 489, 490-492, 515-516 n. 142. A draft constitution wasproposed in 1990 with an explicit secession right that was never ratified (ibid. at 512). Referenda were held in Slovenia, Croatia, and Bosnia-Herzegovina, with votes of varying degreesof supermajority support for independence. See WELLER, supra, note 135 at 569-570, 594.See e.g. SLOSARCIK, supra, note 79, at 541 (explaining failure to use a referendumprocedure enacted in 1991 because the idea of separation could hardly get the support of themajority of the population in either Czechland or Slovakia); STEIN, supra, note 15, at 248(reporting that in October 1992, when agreements between the Czech and Slovak governments for separation had been for the most part negotiated, the number of people viewingthe split as certain rose from 80 percent in September to 90 percent, but only 37 percent ofthe Slovaks and 51 percent of the Czechs considered it as necessary); John McGARRY,Orphans of Secession: National Pluralism in Secessionist Regions and Post-SecessionStates in Margaret MOORE, ed., National Self-Determination and Secession (Oxford:Oxford University Press, 1998) at 215, 220 (describing Slovak secession as largely an eliteproject with only 8 percent in 1990 in Slovakia supporting secession). Elite opinion mayboth vary from and help shape public views and reactions, and political party leaders maysometimes polarize different publics on questions relating to secession. See generally PaulM. SNIDERMAN et al., The Clash of Rights: Liberty, Equality and Legitimacy in PluralistDemocracy (New Haven, CT: Yale University Press, 1996) at 256 (noting special volatility of group rights and how English Canadians react adversely to statements made byFrench Canadian elites that may not reflect the views of most French Canadians, elicitingmore extreme language by English Canadian leaders, and so forth).See Cass SUNSTEIN, Constitutionalism and Secession, (1991) 58 U. Chi. L. Rev. 633 at634 n. 5 (reporting that in late 1990 Slovenia passed a constitutional amendment creating aright to secede).See generally STEIN, supra, note 15, at 23, 37, 49-50. A counter-example may be providedby Ethiopias 1994 Constitution, adopted in the wake of Eritreas 1993 secession, whichincludes in art. 39 recognition that Every Nation, Nationality and People in Ethiopia has anunconditional right to self-determination, including the right to secession and provides aprocedure for the exercise of the right to secession. See infra, note 143.

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COMPARATIVE CONSTITUTIONAL FEDERALISM: ITS STRENGTHS AND LIMITS

Professor Cass Sunstein, in the early 1990s, argued that a waiver of

the right to secede is a natural part of constitutionalism.139 Although somesecession theorists disagree with Sunsteins conclusion140. comparative constitutional experience, such as that briefly described above, provides somesupport for Sunsteins arguments against constitutionalizing rights of secession. Where constitutions and laws have provided for a right to secession, thelaw has not been usedeven where split-up occurs.141 This empirical recordmight be read to suggest that using constitutional lawor even law at alltoanticipate, far in advance, the resolution of conflicts that lead to secessionarymovements, is unlikely to be helpful.142 But the evidence from experiencewith comparative constitutional federalism is uncertain.143 While unilateralrights to secede may be relatively rare,144 and bear obvious risks to stableand effective governments, the possibility of changes in national boundariesthrough agreement has long been recognized.145 Might constitutional law, orthe experience of constitutional federalisms, have anything to say about theprocesses by which such mutual consent is determined?139.140.

141.

142.

143.

144.145.

SUNSTEIN, supra, note 137, at 670.

See e.g. Daniel M. WEINSTOCK, Toward a Proceduralist Theory of Secession, (2000) 13Can. J. L. & Juris. 251. For an introduction to a fascinating literature, see e.g. AllenBUCHANAN, Secession: The Morality of Political Divorce from Fort Sumter to Lithuaniaand Quebec (Boulder: Westview Press, 1991); Will KYMLICKA, Federalism and Secession: At Home and Abroad, (2000) 13 Can J. L. & Juris. 207.Too few nations have included explicit secession clauses to permit conclusions, but thepossibility exists that the work done to identify and articulate such a right might make it morerather than less likely that the right will be exercised. But see WEINSTOCK, supra, note140, at 261-262 (arguing that by regulating and recognizing secession as a possibility onetames the impulse to secede and moderates governments centralizing zeal that ignoresminority interests).It is at best unclear from evidence to date whether any of the benefits hypothesized bysecession theorists accrue from the presence of a constitutional right to secedewhether interms of avoiding secession, constraining abuse of minorities by the central government,facilitating democratic decision-making, or assuring the justness of the terms of thesecession. For further discussion see JACKSON, supra, note 126.For instance, in 1994, Ethiopia adopted constitutional provisions providing for secessionrights. See the Constitution of Ethiopia, art. 39(1), (4) (conditioning the exercise of rights ofsecession on a two thirds vote in support within the group concerned and on subsequentaction at the national level, including approval by majority vote in a referendum organizedby the Federal Government). It may be too soon to evaluate the success of this approach. Forcritical discussion of the 1994 Constitution and its provisions for secession, see MinasseHAILE, The New Ethiopian Constitution: Its Impact Upon Unity, Human Rights, andDevelopment, (1996) 20 Suffolk Transnatl L. Rev. 1; Alemante G. SELASSIE, EthnicFederalism: Its Promise and Pitfalls for Africa, (2003) 28 Yale J. Intl L. 51, 68-70. Formore optimistic views, see Bereket Habte SELASSIE, Self-Determination in Principle andPractice: The Ethiopian-Eritrean Experiment, (1997) 29 Colum. Hum. Rts. L. Rev. 1; T.S.TWIBELL, Ethiopian Constitutional Law: The Structure of the Ethiopian Government andthe New Constitutions Ability to Overcome Ethiopias Problems, (1999) 21 Loy. L.A.Intl & Comp. L. Rev. 399.See e.g. Constitution of St. Kitts and Nevis, s. 113, 115 (1983) (providing for secession ofNevis upon a two thirds vote of its legislative assembly and a subsequent referendum).See Texas v. White, 70 U.S. 700 (1868) at 726 (secession not legally possible withoutconsent of the other states).

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THE STATES AND MOODS OF FEDERALISM

In the Reference re Secession of Quebec,146 an advisory opinion sought

by the federal government in the wake of a close vote on a referendum on separatism in Quebec, the Supreme Court of Canada concluded that while there wasno unilateral right of secession, principles of democracy and federalism underthe constitution would require the national government to engage in principlednegotiations over secession if a clear majority of the Quebec population votedin favor of secession on a clear question.147 This principle of negotiation wasderived, the Court reasoned, from fundamental constitutional commitmentsto federalism, democracy, constitutionalism and the rule of law, and respectfor minority rights.148 In a lengthy exegesis of the history of the Canadianfederation, the Court emphasized that Canadian commitments were not to apurely majoritarian form of democracy, and that a key question was whichmajorities, at which levels of government, should decide what questions.149The determination of what is a clear majority on a clear question and thenature of subsequent negotiations would be, the Court indicated, politicalquestions to be determined by political actors,150 in which the rule of law andprotection of minority rights would play an important role as well.151 TheSupreme Courts decision was followed by the so-called Clarity Act (whichhas been criticized, inter alia, for failing to clarify some key elements ofoperationalizing the Courts opinion).152 And at least in the short term inCanada, the Supreme Courts decision was accepted by many as shap[ing] theterms of debate in a stability-promoting way.153146.147.148.149.150.

151.152.

153.

Supra, note 77.

Ibid., at 264-269, 273.Ibid., at 260.Ibid., at 255, 259-260.Ibid., at 270-272. Interestingly, the Court did not suggest that the rest of Canada should, inresponse to a positive referendum in one province to secede, vote by referendum on whetherthey wanted to agree to the secession. Compare ibid., at 273-274 (refusing to decide whichof several procedures to achieve lawful secession would apply to future questions ofsecession), with Richard BRIFFAULT, Voting Rights, Home Rule and MetropolitanGovernance: The Secession of Staten Island as a Case Study in the Dilemmas of LocalSelf-Determination, (1992) 92 Colum. L. Rev. 775, 818-819 (arguing for an approach tomunicipal secession that would require referenda in seceding part of a city and in the remainder of the city, with resolution by the state in the event of a conflict). At the national level, theabsence of a superior authority to resolve conflicts (between the national polity and asubnational polity) may make it sensible to move immediately to negotiation upon a clear,supra majority vote in favor of secession in a predefined territorial unit of the larger nationalstate.Ibid., at 267.The Clarity Act came into effect in 2000. See An Act to give effect to the requirementfor clarity as set out in the opinion of the Supreme Court of Canada in the Quebec SecessionReference, S.C. 2000, c. 26 [Clarity Act].See Sujit CHOUDRY and Robert HOWSE, Constitutional Theory and the Quebec Secession Reference, (2000) 13 Can. J.L. & Juris. 143 at 144. The decision has by no means putan end to Quebecs interest in secession. See Cristie L. FORD, In Search of the QualitativeClear Majority: Democratic Experimentalism and the Quebec Secession Reference, (2001)39 Alta. L. Rev. 511 at 541-541 and n. 91 (describing Quebecs legislative response to thefederal Clarity Act).

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The Supreme Court of Canada did not in any significant way explicitlyrefer to the experiences of other constitutional democracies in identifyingits four principles or determining their application to the issue of Canadianconstitutional law before it.154 This is worth remarking, especially in light ofthat Courts willingness in Charter rights cases to consider the constitutionallaw of other nations.155 What the Canadian Court can be understood to havedone in the Reference re Secession of Quebec was to identify basic constitutional commitments through which it developed structural principles leading toan obligation to negotiate upon a clear majority vote on a clear question ofsecession; it did so through the device of constitutional advice from a constitutional court, rather than through a procedure, or set of rights, specified in thegoverning text itself (either at the time the constitution was first adopted orin the course of a major addition or amendment to the constitution, as inadoption of the Charter).156 The Reference re Secession of Quebec thus mightbe understood as a third alternative to a constitution itself, either providing forprocedures to address secession or for rights of secession, on the one hand, andprecluding secession (absent unanimous consent) on the other. The Canadiancourse might be understood as the formulation of authoritative judicial adviceon constitutional standards for addressing secessionary questions when theyarise in the course of a constitutional politys life.Given difficult experiences in the adjustment of national boundaries inareas in which ethnic or linguistic rivalries exist, the Canadian approach mayprove of value elsewhere. As a matter of institutional design, the Referencere Secession of Quebec might be understood to raise the question whether somebasic, but difficult, questions can be deferred from the time of the constitutionsadoption or amendment to be decided in the future by a respected constitutionalcourt in a more highly developed factual and political context, and after moreexperience with the basic written constitutional texts. At the level of methodol154.

155.156.

See supra, note 77, at 275-296. The Court did address the question whether under international law Quebec would have a right to secede unilaterally (upon a clear vote by a majority).The Court concluded that it did not. It found that while international law did recognize theright of a people to self determination, that right did not generally imply a right tosecede, but contemplated a self-governing right that could ordinarily be accommodatedwithin existing national boundaries. It construed international law to require recognition ofa right to secede only in narrowly defined circumstances, e.g. involving colonial andoppressed people, or when a people is blocked from exercises of self-determination rightsinternally, none of which plausibly existed in light of the opportunities for Quebec andQuebeckers participation in self-government and national government in Canada and theabsence of abuse.See supra, text at notes 44-47 (citing Canadian cases referring to foreign or internationalsources of law).For thoughtful discussion of the Canadian Courts conception of the sources of decision inthe Reference re Secession of Quebec that characterizes the Court as in partnership withpolitical branches, see CHOUDRY and HOWSE, supra, note 153, at 154-169 (arguing fora dualist interpretive theory that distinguishes ordinary interpretation from extraordinary interpretation, in which the text assumes a secondary importance).

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ogy, it is an approach that treats the Constitution as standing for values of governance as well as individual rights, and applies those values to a difficultpolitical problem. Whether this approach will prove successful in these regards,even in Canada, is yet too early to determine, much less its application elsewhere.It is also possible that, apart from the procedural posture of the advisory opinion exemplified in the reference procedure, and the methodologicalapproach of deducing values of governance that can be extended to difficultquestions not specifically addressed in the text, the substantive content of theReference re Secession of Quebec elucidation of basic constitutional norms ofdecision-making may well have value to other federations. The problem ofreconciling local and national majorities is endemic and, once the question ofsecession seriously arises within a polity, is difficult to reconcile within aframework of law. The values that the Supreme Court ascribed to the CanadianConstitution are values that can be derived from the texts and traditions of manyother federal systems with commitments to the rule of law, democracy, federalism, and the protection of minority rights. Thus, notwithstanding the Courtsefforts to locate these values in the specific history of the Canadian federation, aquestion for the future is whether Canadas Reference re Secession of Quebecwill begin a transnational constitutional discourse on how to reconcile commitments of federalism and minority rights with commitments to democracy andthe rule of law in a way that can enrich world jurisprudence on governmentaldecision-making structures.157CONCLUSIONReturning to the questions of the benefits and limits of comparativeconstitutional law in the area of federalism, one must be very cautious inassuming that a doctrine, text, or structure serves the same function in differentfederal systems. Much depends on the historic circumstances giving rise toparticular federal agreements and the interdependent structure and relationshipof provisions relating to federalism. Comparative constitutional experiencewith federal systems can, however, illuminate basic questions of structure anddesign, including the question of whether and how to use the constitutionor constitutional law to address the difficult questions posed by claims tosecede

157.

See James TULLY, Introduction in Alain G. GAGNON and James TULLY, eds., Multinational Democracies (Cambridge: Cambridge University Press, 2001) at 1, 14 (emphasizing the Reference re Secession of Quebec concept of democracy as entailing a continuousprocess of discussion in which members have democratic rights to initiate negotiations overconstitutional change).

Ethnic diversity presents an increasing challenge to the unity and integrity

of the nation-state in the twenty-firstcentury. The fragmentation characterizing multicultural societies raises important questions regarding the structure ofgovernance, the distribution of politicalpower, as well as the political representation and participation of different ethnicgroups within a nation-state. This paperexamines the roots of conflict withinmulticultural states, and looks into the different institutions, tools, and principlesstates have used to accommodate ethnicdiversity.

The author contends that most ethnic

conflicts cannot simply be reduced to matters of individual rights and/or minorityprotection. Rather, he suggest that federalism, understood as the constitutionally-established balance between self-ruleand shared-rule, may prove to be effectivein managing ethnic conflict, establishingthe legitimacy of the State, and governingmulticultural societies. The paper concludes with a discussion of the specific chal-

INTRODUCTIONModern States are all Facing MulticulturalismAlmost 95% of todays world population lives in multicultural states,which are fragmented into different cultural communities; 40% live in federalstates and the others in unitary states. Multiculturalism has become, especiallysince the fall of the Berlin Wall, a challenge for most countries threatened byan increasingly divided and fragmented society. How can these states bringand hold their societies together? States facing the challenge of multiculturalsocieties, in a globalised international order, have to cope with problemsand conflicts which, up to now, were overshadowed by the threat of the twoconflicting blocks that split mankind in two worlds: the capitalist and thecommunist world.Up to now, the main issues with regard to governmental power dealtwith good governance. Of central concern were the governance of society andthe organization of the government. Today, we are faced with much morecontroversial questionsnamely who should govern whom? What majority ormajorities should rule over what minorities? Who should hold the politicalpowers of the state, and with regards to whom? These important questions canonly be answered, if an even more controversial question can be satisfied:Who should decide the procedures that will be used to determine who governsover whom?Federalism has long been seen as a tool separating governmental powers,not only horizontally, but also vertically. Federalism is traditionally consideredto be a good device to limit governmental powers. Thus, federalism has beenseen as a particular solution to the traditional issues of good governance, but isalso criticised as neglecting efficiency and equality.

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We understand federalism as the constitutionally established balance

between self-rule and shared-rule.1 Keeping in mind this notion, one can see therole that federalism might play in holding or bringing multicultural societiestogether. Not only does it answer to the questions of governmental structure andgovernance, but also to that of who should govern whom. Accordingly, federalism will be a central theme in the following discussion of multiculturalism.Importantly, although the analysis of multiculturalism sheds light upon manyaspects of the conflicts occurring in modern-state societies, it does not alwaysprovide clear and determinative answers. Nevertheless, this paper will attemptto provide a comprehensive account of the main issues and challenges facingmulticultural societies.Why is Multiculturalism a Problem?Do federalism and decentralisation help to bring and/or to hold multicultural societies together, and if so, why do they help? To what extent do federalism and/or decentralisation provide specific tools to states fragmented bymulticultural societies?The basic fundament of the state is a democratic society. To what extentcan a society, fragmented into different cultural communities, be consideredas a united civil society, legitimising and controlling state power? Must weprovide different political and legal tools in order to sustain a united andcomposed diversity within civil society?Since the fall of the Berlin Wall, internal conflicts of multicultural stateshave been of increasing concern for the international community, which hasin some cases intervened with military force and has even installed quasiinternational protectorates. With regard to these developments, we have toask the following questions: Based on what concepts does the internationalcommunity intervene in multicultural conflicts? Are there concepts and legalprinciples available for the international community to rule multicultural societies and to bring and/or hold divided societies together?A. WHY DOES THE NATION-STATE EXCLUDEMULTICULTURALISM?1.

Equality of Homo Sapiens

Researching the political and theoretical background of the modern

constitutionalism, one will have to agree that almost all modern state-conceptsare based on the idea of a secular state, legitimised by the social contract of the1. Daniel J. ELAZAR, Exploring Federalism (Tuscaloosa, Al.: University of Alabama Press,1987) at 5.

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people. Political power is established on the fundament of peoples sovereignty

and its legitimacy finds its very root in liberal concept of the universal Homosapiens. The very assumption of the secularised democratic state is that humanbeings are essentially equal as beings: egocentric (Hobbes); bearers of inalienable rights (Locke); rational citizens (in the sense of Rousseaus citoyen); exploiters or exploited (Marx); made for the political community (Homo politicus in the sense of Aristotleand Thomas of Aquin); cost-benefit driven (in the sense of the Homo oeconomicus, Adam Smith,Rawls).Importantly, this basic truth excludes the diversity of individuals andcommunities, which has developed out of culture, tradition, and language.Considering the equality of all individuals, one must question the reasons orjustifications behind the inclusion or exclusion of certain individuals from apolitical state community; which is based on the consensus and sovereignty ofthe inclusive members. On what grounds of legitimacy can this communitybe ruled by the will of the majority; who in some cases, may even be convincedthat its vital interests, as cultural community, are threatened? What criteria areused by this political unit to include specific communities, and on what groundsdoes it exclude other communities or regions from its territory? In other words,why has the international community celebrated the unification between thetwo Germanys, while forbidding the unification between Germany and Austriaafter World War I (Peace Treaty of St. Germain)?2.

Diversity and the Nation Concept

Today, the people as fundament for state legitimacy is called nation. In

some cases, the nation is made by the constitution, while in others the state ismade by a nation which claims pre-state unity based on culture, history, orreligion. A nation made by the constitution excludes diversity by reducing thehuman being to the rational citoyen. A state made by the pre-constitutionalcultural unity, by definition, has to exclude cultural diversity, as it wouldendanger its very rootsthat is, the monocultural peoples sovereignty.22. Lidija BASTA FLEINER, Minority and Legitimacy of a Federal State: An Outsider Perception of the Swiss Model in Lidija BASTA FLEINER and Thomas FLEINER, eds., Federalismand Multiethnic States, 2nd rev. ed. (Fribourg: Institute of Federalism, 2000) at 78.

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Citizens are held together by the social contract as rational beings. Theyhave decided, by reflection and choice, to establish and uphold a certainpolitical order. What values can bring and hold the people together? Is itcommon history, religion, language, or a common political ideology? If peoples are held together by culture, then multiculturalism is a very realthreat of the unity of the nation. If they are held together by political values, then all individuals, notwithstanding their cultural background, can join the community. However, assoon as they introduce cultural values equivalent to political values, the veryfundament of the political unity of the nation will be threatened. If they are held together by social and economic reasons (immigrationcountries), then they have to ignore the different cultures (including theculture of the native people) as political values. The economy must havepriority over culture; and cultures must integrate into the melting society,driven by the value of common welfare.Thus, states are either held together by a homogeneous culture, excludingother cultures, or by a homogeneous concept of political or economic values,excluding culture as a political factor of the community. Multiculturalism anddiversity, as such, are considered to be a threat to the nation concept. If a nationis held together by political values, then it will be inclusive towards all differentcultures within its territory, providing they do not claim any political recognition for their culture. Multicultural diversity is basically ignored as a structuralfactor to unite or decentralise the political society. For this reason, a politicalnation denies culture as a nation-building factor. The nation can only exist onthe basis of equal and rational individuals who ignore their cultural roots.If the choice of the political unity is focussed on the territory (e.g., immigration countries, such as the United States: We the People of the UnitedStates), then culture or history are considered to be irrelevant nation-buildingfactors. Culture, as nation-building factor, can even be considered a threat to thestate, because it questions its very foundationnamely, that rational citoyensare held together by the universal, e.g., republican values proclaimed in theconstitution (e.g. France, Turkey).If individuals are held together by their common history, culture, orreligion, then cultural communities will have priority over the territory (e.g.,Great Germany, Albania, Serbia, Croatia, and Hungary, etc.). But in this case,cultural diversity, and the resulting fragmentation caused by traditional minorities or immigration, must be considered as a major failure threatening thenatural unity of the nation. The universal values proclaimed in the constitution,based on the equality of the Homo politicus, may provide a common ground175

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founded in the idea of constitutional patriotism. However, since the state hasnot been made by the constitution, but rather by the pre-constitutional culturalunity of the nation, the constitution has to exclude other cultures as nationbuilding factors.Today, almost all constitutions proclaim universal values, but their fundamentthat is, the human being as rational homo sapiens providing throughthe nation the very sovereignty of the stateare held together on differentgrounds, all of which exclude, per se, any multicultural diversity. They cannotaccommodate multiculturalism, but must either ignore, deny, or eliminate it.Constitutionsmade for the universal citoyenbecame universalinstruments proclaiming political values for all equal individuals. However,although the nation may bring a society together with universal values, it mayalso separate its community from other nations through its specific nationconcept. Therefore, the framers of a constitution must introduce and affirmvalues that are universal in character, and thus good for all. Consequently, whatis good for all necessarily excludes diversity.Those who establish a constitution for a pre-political cultural nation arenot concerned with what holds society together, because it is held together bynature. Thus, they also proclaim universal values within their constitution,knowing that their nation is not held together by these values, but by the unitingfactor of nature.3.

Taking Cultural Diversity Seriously

All these basic state and nation concepts do not take cultural diversityseriously. Either culture is ignored as such, treated as self-evident, or it isignored because it is inherently exclusionary. In no case is multiculturalismtaken as a fundamental element of political order, which would politicallyreflect the cultural diversity.States are held together, and at the same time separated from other surrounding states, through their specific nation concept,3 which: ignores culture (United States: melting pot, immigration country); denies culture (France, Turkey); is based on one identity culture (Preamble of the German Constitution: theGerman People have adopted, by virtue of their constituent power, thisConstitution) and eliminates cultural diversity by assimilation.3. Nicole TPPERWIEN, Nation-State and Normative Diversity (Fribourg: Institute ofFederalism, 2001) at 194.

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These different nation concepts not only contradict one another, butthey are also unable to accommodate different cultures within their politicalunity. Nations that ignore different cultures can only survive as immigrationnations, which have to separate political unity from any cultural unity, andexclude the culture of their native inhabitants. Immigrants belonging to different cultures can identify with the political state, because it has given them a newspiritual, cultural, and economic freedom. However, were they to seek politicalrecognition of their culture (e.g., recognition of their language for educationand the judiciary), the state would have to reject their claims, as the enhancedcultural diversity would induce political fragmentation.Nations that deny culture are founded on rational citizens, who are notallowed to pursue their cultural identity as part of the political identity ofthe state (e.g., secularised schools forbidding the veiling of Muslim girls4). Allcitizens are rational citoyens, equal with regard to each other. Their culturalidentity is of no political value.Finally, there are also states which are based on a concept of culturalidentity. In these cases, the state unit, as such, is based on a homogeneouscultural identity. Such cultural nations are held together, not by reflection andchoice, but by nature. Their identity and communality is pre-political, pre-stateand pre-constitutional. State unity emerges from the natural cultural identity ofthe nation. However, this state cannot accommodate other cultures. Rather, it isa state which, at best, tolerates non-integrated minorities as guests, but not asequal citizens. The status of a fully recognised citizen can only be reachedthrough integration. Whoever wants to change citizenship must also changetheir cultural identity. States with nations held together by nature usuallyproclaim universal political values within their constitution. The constitutionitself, as a political document, may even become a value of identity in the senseof constitutional patriotism (Verfassungspatriotismus).5 However, when thetime comes to decide on issues of cultural identity, such as citizenship, theexclusion of other cultural identities once again becomes evident (cp. Art. 116German Constitution).It seems evident that states with nations made by nature cannot, by theirvery definition, accommodate diversity and multiculturalism. Thus, whenevera cultural minority living in a multicultural society requires political recognition and political identity, the state has to reject the claims. Since it is not able toprovide a fragmented political identity, it will end up in major conflicts with itsminorities. It has to either integrate minorities within its majority culture, which4. See J.-F. AUBERT, Islam lcole publique in Bernhard EHRENZELLER et al., eds., DerVerfassungsstaat vor neuen Herausforderungen, Festschrift fr Yvo Hangartner (St. Gallen:Dike, 1998) at 479-495.5. See Jrgen HABERMAS, Die Einbeziehung des Anderen, Studien zur politischen Theorie(Frankfurt: Suhrkamp, 1996) at 143-145.

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will destroy the very cultural roots of the minorities, or it has to deny minoritiesthe possibility to enhance their cultural identity through political means. In theend, any fragmented political identity might endanger the unity and homogeneityand even the very foundationof the states existence.If the state is an immigration state, it can accommodate the differentcultures belonging to all immigrant citizens on the basis of private pluralism,but not as political instruments fragmenting the unity of the state. However, thisis only possible if the cultural communities accept the political legitimacy ofthe immigration state (e.g., the American dream) and if they can accommodatethe idea of the melting pot. Importantly, cultures that feel excluded, and whichhave lived there prior to the arrival of immigrants, will not be prepared to acceptthe melting pot ideology. As a result, they will fundamentally threaten thelegitimacy of the state made by immigrants.Thus, every nation held together by universal values and hosting othercultures may sooner or later run into major conflicts with its multiculturalsociety. Oftentimes, multicultural states will not be able to accommodate theircultural diversity by universal political values.B. CONTROVERSY OVER THE ROOTS OF CONFLICTSWITHIN MULTICULTURAL STATESTodays world is threatened by innumerable conflicts between ethniccommunities or states and minorities. Some conflicts are open and violent,while others are hidden and may explode at later times. Whoever wants to findand promote tools to prevent, manage, or even resolve those conflicts has tofind their causes.However the causes of those conflicts are most disputed. The roots maybe economic (economic injustice), historical (revenge for historical injustice,discrimination, and lost self-determination), unfriendly policies of neighbouring states (often linked to their ethnic minority and sometimes generatedby religious fundamentalism), egoism of power and greedy warlords; theillegitimacy of the state or the nation (based on the exclusion of the identityof minority cultures), and lastly, fear and mistrust (caused by long-standingconflicts between state and minority terror).Everybody would agree, however, that ethnicity is somehow inducing theconflict. Ethnic diversity might be stirred up and mobilized for many reasons,such as to maintain economic and political power or to uphold state terror.Regardless, it is always somehow apparent.The scientific community would agree that the incredible development ofmedical science, in the twentieth century, was contingent upon the fact that, at178

THE CHALLENGE OF ETHNIC DIVERSITY TO FEDERALISM

the end of the nineteenth century, medical science began to focus not only onthe symptoms of illnesses but also on their causes. Similarly, if one wantsto find effective tools for conflict management and resolution, one mustunderstand the symptoms of ethnic conflict as well as its causes. So long asthere is no consensus on the causes and if one is content to know the symptomsalone, then there is almost no real remedy in sight.C. DOES GLOBALISATION ELIMINATE OR EVEN RESOLVETHOSE CONFLICTS?One might think that with the sovereignty of the global market,nation-state sovereignty will fade away.6 The private market will remove theneed for political and social policies. Thus, the enemy of ethnic claims mayshift from the local nation-state to the global market. Controversies on burningissues, such as who should govern the state or how should the state be governed,will lose much of their significance, as the political power of the state is withering away. There is no need for a national government, if the state becomesprivate.However, if we look at the reality of the needs and wants of human beingstoday, one can see clear contradictions: consumers desire a global market for their needs and expenses; citizens claim the universality of human rights; people want to safeguard their local identity within their religious, linguistic,historical, or cultural community; human beings seek local security; there is a global market for products and finances, but the labour market hasremained local to a great extent.If one takes these facts seriously, then one must admit to the contradictions. For instance, the desire to enhance globalisation and universalisationseems to run contrary to the desire for localisation. Globalisation and localisation are both actual tendencies. The more the world becomes global, the more itwill have to accommodate local needs and claims. It would be erroneous tofocus solely on globalisation or localisation.

FLEINER et al., eds., Rule of Law and Organisation of the State in Asia (Basel: Helbing &Lichtenhahn, 2000) at 15-31.

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What does this mean for multicultural states? It is clear that in thisdevelopment, the need for local identity and security has to be met, not onlythrough the privatisation of local needs, but also by political structures thatcan accommodate the demands of human beings rooted within their localcommunity and seeking, for instance, better security for their families.As the global market expands, the need for local justice will increaseaccordingly. Thus, local conflicts will not fade away. Rather, they will becomemore open, violent, and explosive. The cost-benefit driven Homo oeconomicuswill seek to benefit in the global market, while the Homo politicus will requirelocal compensation for injustice caused by the global market. Consequently,the future challenges of multiculturalism will increase rather than diminish.D. WHAT TOOLS ARE AVAILABLE TO THE MULTICULTURALSTATE IN ORDER TO MEET THE INCREASINGCHALLENGES OF MULTICULTURALISM?As we have seen, globalisation and localisation will increase in conjunction. As the fragmentation of the multicultural state continues, it will presentgreat challenges to states that have not developed the capacities to deal withthem. States will not be able to overcome these conflicts, if they cannot achievebasic legitimacy in the eyes of their citizens and communities. If states want tohold their multicultural societies together, the question to be asked is not onlywhat is good for all, but also what is good for usus meaning we as all citizens, and we as all the peoples living within the territory of the multiculturalstate.Whoever wants to assess these tools cannot only ask for good governance. They must also consider who should govern whomthat is, in whatinstances should a certain majority govern over certain minorities, and whoshould decide this distribution of power. Thus, the different tools availableto meet the explosive challenges of multiculturalism must establish popularlegitimacy.Up to now, different states have developed different tools, instruments,and procedures to meet the challenges of multiculturalism. Whoever wants toassess these tools should explore the causes and the symptoms of the potentialconflicts threatening multicultural countries. To do so, one must know what isreally needed to hold or bring a multicultural society together.1.

Policy of Tolerance

States can pursue tolerance as a major policy for unity. On the one hand,whoever is tolerated will never feel fully accepted as an equal partner within thepolitical community. On the other hand, tolerance is only possible on the basisof mutual respect and dignity for all individuals as human beings. Whoever is180

THE CHALLENGE OF ETHNIC DIVERSITY TO FEDERALISM

tolerated will have the possibility to live within the community without beingdiscriminated against on the basis of race, religion, or language.Tolerance, implemented into the legal system, is the guarantee of humanrights as individual rights. Based on the protection of individual human rights,state authorities are prohibited from discriminating against individuals, belonging to certain minorities, on the basis of language, religion, or race. Minorityprotection is a necessity, as it belongs to the universal values of the constitution.However, those who are tolerated are not part of the We, in the sense thatThey are not expected to define the policy of the We. While diversity mustbe respected, it can never become an integral part of the policy of the state,which does not want to go beyond tolerance.Tolerance of minorities is a minimum requirement that every state mustaccept as part of human dignity, and is thus required by the universal principalsof human rights. States can even strengthen and enlarge the policy of tolerance,by extending it to minority communities through affirmative action (as opposedto granting communities collective rights); it targets individuals who facediscrimination in society and have unequal opportunities. Affirmative actionmay discriminate against individuals of the majority. However, it takes intoaccount the de facto discrimination of minorities and privileges of majorities.2.

Policy of Reconciliation

In the preamble of the South African Constitution, we can find the

following message: We ... adopt this Constitution as the supreme law of theRepublic so as to ... Heal the divisions of the past and establish a society basedon democratic values.... Whoever wants to reconcile different culturalcommunities cannot only guarantee individual human rights protection forminorities, but must also provide tools for conflict management, better understanding and cooperation between the minorities. Section 235 of the SouthAfrican Constitution provides a balance between the right of self-determinationof the South African Nation and any community sharing a common culturaland language heritage.Whoever explores the history of the South African constitution-makingprocess will detect the importance of a specific process for reconciling communities consumed with fear and mistrust. The twofold constitution-makingprocess provided, first, an interim constitution (pro futuro) negotiated on thebasis of power-sharing between communities that were equal in terms of rights,but unequal in size and history. In the second constitution, the procedure wasbased on the principle of democratic majority (though this process continued tobe guided by some basic principles set out in the interim constitution). Time, asfactor to transform enemies into adversaries, may be an essential tool that canbe used as procedural support for reconciliation.

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Direct democracy, as used in Switzerland, is another tool that has

often proved useful in reconciliation. Although direct democracy ismajority-oriented, it also has an important disincentive effect, as it encouragesthe political elite to seek consensus. In the Swiss experience, if the political elitedo not reach a consensus, the people have usually rejected the proposals in thesubsequent referendum.7 Thus, the disincentive effect of direct democracy mayvery well enhance the development of a consensus-driven democracy, and thishas proven to be an excellent tool for reconciliation and conflict management.3.

Equalizing Minorities with the Majority

Democracy is based on the majority principle, which presumes that the

people holding the majority will not abuse its democratic powers and tyranniseits minorities. If the state wants to hold society together, the majority mustalso recognise the right of its minorities to be treated as equals, not only asindividuals, but also as communities. Equality can often not only be achievedby granting individuals of minorities equal rights. Minorities claim also theright to be equal as a community. Individuals of a minority will not be content ifthey only receive equality as individuals, but will also want their community toreceive the status of equality. Thus, the aim must not only be to guarantee equalrights of individuals, but also the right to be equal as belonging to a minoritycommunity. For instance, the recent draft for a new Serbian constitutionprovides the following aim of the state in its preamble: Conscious of the statetradition of the Serbian people and determined to establish the equality of allthe peoples living in Serbia.8A state, which implements such a fundamental principle, will have totranscend the aim of equality of individuals and recognise basic collectiverights. According to Article 232 of the Brazilian Constitution, Indians havestanding to sue and defend their rights as individuals and as a collectivity.How does the draft for a new Serbian constitution implement its policyto establish equality of its peoples? The answer according to chapter III ofthis draft is: Persons belonging to a national minority shall have specialrights, which they exercise individually or in community with others. If peoples of fragmented societies were to achieve equality, the state would have toimplement this policy through the instrument of collective rights. However,collective rights may limitand even violateindividual rights. To whatextent can individual human rights be limited for the sake of collective rights?In Switzerland, the Federal Tribunal has decided that individual language rights7. Thierry TANQUEREL, Les fondements dmocratiques de la Constitution in Daniel THRERet al., eds., Verfassungsrecht der Schweiz (Zrich: Schulthess, 2001) at 309-312 n. 18.8. See Lidija R. BASTA, ed., Constitutional Prerequisites for a Democratic Serbia (Fribourg:Institute of Federalism, 1998) at 2-9.

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can be limited by the collective right (principle of territoriality) of a threatened

linguistic community, for the sake of peace among the different communities.9Thus, if states want to hold their societies together, their goal cannot only beindividual liberty, as Hannah Arendt suggested, but also peace among the communities. However, minorities should not be allowed to derogate from theessential content of human rights guarantees, which according to the covenantscan never be limited, not even in cases of emergency.4.

Enhancing Diversity

The multicultural state can choose to hold society together through thepromotion of diversity. In Article 2 of the new Swiss Constitution, the SwissConfederation shall promote the ... inner cohesion, and the cultural diversity ofthe country. What tools are available to enhance such policies? The onlypossibility to ensure this policy is to give the different communities certainpowers and autonomy. One has to find a constitutional framework, whichcan accommodate such powers and autonomy. Whoever answers these fundamental questions must also respond to the more challenging questions of whogoverns whom, and who decides the distribution of power?Decentralisation provides local communities with limited autonomy, andthus self-government. But the central power will still depend on the majorityprinciple to decide which minority should have governmental powers and whatthe extent of these powers will be. Thus, only the balance between self-rule andshared rule will give communities the opportunity to promote their culturewithin their territory and to define the solidarity needed for the balanceddevelopment of all communities. Such constitutional possibilities can only beimplemented by a federal constitutional design.10All different tools, procedures, and institutions, which would enable thestate to deal with its cultural fragmentation, require an important change of statepolicies, if they want to meet the challenge of uniting its society.11 States willhave to take cultural diversity seriously. They can neither ignore nor denyculture as part of their political order, nor can they, as states made by the naturalunity of the people, exclude other cultures. To take cultural diversity seriouslymeans that the constitution makers cannot only look to universal values, butmust also ask what is good for themthat is, what is good for their communities and for their citizens.9.

See the listing of Federal Tribunal cases in A. AUER, G. MALINVERNI and M.

THE STATES AND MOODS OF FEDERALISM

Federalism should then be understood as a constitutional design that not

only facilitates tolerance, but also promotes diversity; that not only limitsstate power, but also enables diverse groups and individuals to participate ingovernment; that not only welcomes individuals but is also inclusive of culturaldiversity, for the greater benefit of the whole society in the endeavour of justice,peace, and liberty. Thus, federalismthe constitutional implementation of theprinciple of unity by diversitycould become the tool for multiculturalstates to enhance diversity. The specific fragmentation of a stateits diversities seen as deserving promotionwill become the special focus of a statepursuing the universal value of promoting its own specific values, a state that isprepared to answer the question of its citizens: What is good for us and for ourcommunities?E. THE DIFFERENT ACTORS UNITING MULTICULTURALSOCIETIESHaving explored the different tools to accommodate diversity, we nowhave to find out the specific challenges to be met by the different actorsconfronted by the multicultural society. Four main actors have to meet the newclaims of diversity: the state with regard to state-making, constitution-making,and nation-building; the decentralised units with regard to democracy and ruleof law; the civil society split by collective rights, autonomy, language, andreligion; and the international community bringing and/or holding togethermulticultural society. These actors, and the respective challenges they face, willbe canvassed in the following workshops.1.

The State as an Actor for State-making and Nation-building

State-making and nation-building are issues that are closely linked to thebasic values of a state, and to the constitution-making procedure that wouldprovide acceptable solutions to the great bulk of the society. Who shouldgovern whom? Who should decide, who should govern whom? What procedures are likely to be successful in making a new constitution anda state, which enjoy legitimacy with regard to the great bulk of its multicultural society?Constitution-making procedures cannot start from scratch. Rather, theycome from a pre-existing political ordera state confronted by conflicts, or apolitically divided community seeking a common state order. In such cases, oneassumes that the final solution might be a common state held together by afederal constitution or a confederal treaty. The question that follows iswhether the union will be constructed from the bottom-up or from thetop-down, by centralization or decentralisation.

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THE CHALLENGE OF ETHNIC DIVERSITY TO FEDERALISM

What are the appropriate principles and procedures for constitution-making

in ethnically divided societies?If the process of state-making has to be negotiated, the main questions tobe solved will be: Who are the parties to this negotiation: a sovereign state and one or severalminorities, sovereign states, or ethnic communities? What will be the outcome: a constitution or a treaty? Linked to these questions is the more challenging question of who could orshould initiate the negotiation process? How can this process be reconciled with democracy? To whom are the mediators and parties of the negotiation accountable?Fragmented societies should try to overcome conflictual fragmentationby creating a new common identity. Is it possible to create a new common identity based on common values (e.g.,South Africa, Spain, and Belgium)? And if so, by what means? What is the driving force behind nation-building in a fragmented state?Up to now, there are only two value systems which have been able to holdsocieties together: inclusive universal values or exclusive local and distinctivevalues. What can federal states do to overcome the dilemma between universalismand localisms? How can they provide the constitutional underpinning for apartially inclusive and partially exclusive civil society? What shared values can create the We of the common state, and notexclude the distinctiveness of the federal units?When the nation is confronted with major ethnic conflicts, it may tryto reconstruct the federal balance for the sake of nation-building. Should the federal constitution already provide a procedure for the reconstruction of the federation? How can the (ideally autonomous) territory be determined and by whom?

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2.

Decentralised Units as Actors

When states decide to hold their multicultural society together through

decentralisation, what can be done to guarantee decentralisation and goodgovernance within the autonomous units? What are the conditions and pitfallsof success of decentralised governance, especially in multicultural societies?The creation of local governments helps to manage conflicts in at leasttwo situations: first, ethnic, religious, and linguistic minorities often are notconcentrated in a particular region of a country, but their members live in manyof its parts; second, where the central state is very weak, the introduction offederalism might lead to secessionism, or even to the dissolution of the country,because some subnational units are strong enough to challenge the centralgovernment effectively. Here, the introduction or strengthening of localgovernments would allow for the accommodation of diversity without jeopardising stability and endangering national unity. Finally, decentralisation has apreventive function: if it is true that todays conflicts have much to do withpolitical power and access to economic goods, and that ethnicity, language, andreligion are used as instruments to mobilise people in such conflicts, thendecentralised forms of government help to dilute potential conflicts by givingsome political power, and control over economic resources, to all parts of thepopulation, including minorities.12Decentralisation undeniably leads to vertical power-sharing. What abouthorizontal power-sharing at the local or regional level? If decentralisation leadsto more socio-cultural segmentation, local democracy is under a structuralchallenge to assure political pluralism. But how does local democracy deal withpolitical elites?What conditions and instruments are necessary for, and conducive to,transparent and accountable governance at the local level? How can the optimaluse of the often-scarce resources available to local governments be guaranteed?Is it easier or more difficult to fight corruption at the local level?The legitimacy of the State at the local level can only be strengthened ifauthorities are able to respond to the legitimate needs of the population. Decentralised government has some well-known advantages in this respect, but regularly meets technical and political difficulties, which are not easy to overcome.Decentralisation must face not only the issue of social inequality ingeneral, but also the problem of inequality between poor and rich regions.Moreover, the tension between human rights and local traditions can be considerable, and conditions to guarantee human rights and social equality difficult.12. Thomas FLEINER and Lidija BASTA FLEINER, Federalism, Federal States and Decentralization in BASTA FLEINER and FLEINER, supra, note 2, at 11-16; BASTA FLEINER,supra, note 2.

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If decentralisation is used as a tool to manage conflicts, then another

requirement should be mentioned. Where forms of decentralised governanceare only granted to specific minorities, but not those belonging to the majoritypopulation, there is the danger that these minorities will feel excluded andmarginalized from mainstream politics. There is an equal danger thatsuch asymmetric forms of decentralisation will help to introduce or reinforceethnicity as the main factor in legitimising political action.3.

Civil Society as an Actor

To what extent can civil society hold its different communities together?What constitutional institutions are available for conflict management? Cansociety be held together by individual or collective rights?The very principle of the rule of law and the guarantee of inalienablerights are oriented towards individuals rather than groups. The indispensablepartner of the modern state is the civil society based on individuals.13 Do the boundaries of federal units have to be identical with the differentethnicities? Is ethnic federalism itself a legitimate goal? Does the very concept of civil society allow for the fragmentation of society,and what might be the criteria for this division? Can one envisage a federal state composed of different federal units, eachhaving its own civil society (European Union)?Collective rights are often considered to be contrary to individual rights. Are collective rights appropriate tools to overcome the dilemma betweengroup loyalty and individual citizenship? How can the state, and in particular a federal state, establish a balancebetween inalienable individual rights and collective rights of groups? What does autonomy mean in the context of an ethnically-divided state? Who is the holder of this right? What kind of autonomy and/or shared powers should be granted to federalunits or groups?13. See Daniel J. ELAZAR, Federalism and Civil SocietyDefining the issue in Jutta KRAMERand Hans-Peter SCHNEIDER, eds., Federalism and Civil Societies: An InternationalSymposium (Baden-Baden: Nomos, 1999) at 35-43.

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Can the right of self-determination restrict individual rights within the

respective community (e.g., collective rights of native communities in immigration countries)? Can federalism give autonomy to groups without territorial boundaries(personal federalism)?Very often, language and religion are concrete fundamental rights, whichare used to defend either group interests or individual rights. Religious andlanguage rights are, thus, linked to the very core of ethnicity. Both rights can beinterpreted as community or individual rights. If the constitution has a mainfocus on liberty, in the sense of individual liberty, then it will deny collectiverights. Can language or religious rights, as individual rights, be translated into grouprights for the sake of peace among different conflicting communities? To what extent can particular collective rules of religious or languagecommunities restrict individual rights, and still be universally acceptable forthe sake of peace of multicultural societies?Language is part of the identity of every individual. It determines the wayof thinking and communicating. It influences education and opens the door toones own cultural roots. State authorities communicate in the official languagewith the citizens. Court proceedings are held in the official languages. Publicschools provide education in the state language. In a federal country enrichedby multicultural societies, the following questions have to be dealt with: How shall a federation deal with the different languages of its communities? Should federal units be allowed to defend their language territory and towhat extent? Can or should individuals identify with a state, which does not use or evenrecognise their mother tongue?Every state has a link to religion that follows from its history. On theother hand, we have to be aware that religions differ in their attitudes to statesand politics. Some religions ignore the state, some integrate with it, othersdepend on the state and some merge with politics. Some proselytizing religionsare inclusive and have universal claims. Others are based on the idea of a chosen people and are thus exclusive. How can federal states accommodate different religions with differentattitudes towards the states?188

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To what extent should states allow religious communities or federal units,

based on the collective right of religion, to limit individual religious rights? What instruments should be available to federal states in order to implementthe basic standards of freedom of religion in all states?4.

International and Regional Action with Regard to Conflicts in

Multicultural Societies

The international community often and increasingly influences the

response to interstate ethnic conflicts and its outcomes. In some cases, the statesconcerned are federal. Bosnia-Herzegovina, at that time a part of the FederalRepublic of Yugoslavia, is an example. In such cases, one effect of international influence may be to cause secession of a part of the federation, andthe creation of a new state. In turn, this creates a need for a new constitutionalorder. Even where a state, in which there is ethnic conflict that attracts international attention, is not originally federal in form, federalism may be anappropriate response to resolution of the conflict.Traditionally, the international community is composed of states, andeach accepts the integrity of the others. Accordingly, it has long been acceptedthat the principal goal of the international community is to provide a frameworkfor cooperation and to maintain peace between states, and not to resolvedisputes within them.On the other hand, the international legal system is changing. Thephenomenon was captured by Boutros Boutros-Ghali in An Agenda for Peace:The time of absolute sovereignty... has passed; its theory was never matchedby reality.14 Human rights are a concern of international law, as evidenced bythe international Bill of Rights and a host of other international instruments.Experience shows that states that are parties to human rights instruments oftenfail to meet their obligations, at the expense of their peoples. Ethnic conflictwithin a state may be associated with the failure of the state or can threaten or beperceived to threaten international peace. Minorities increasingly invokeintervention by the international community on these grounds. A new phase ininternational intervention began with the use of Chapter 7 of the United NationsCharter to establish peacekeeping in the former Yugoslavia and Rwanda. Thenew focus on the threat from states that harbour terrorists may provide furthergrounds for international intervention in the future.14. Boutros BOUTROS-GHALI, An Agenda for PeacePreventive Diplomacy, Peacekeepingand Peace-making: Report of the Secretary-General Pursuant to the Statement Adopted bythe Summit Meeting of the Security Council on 31 January 1992/ Boutros Boutros-Ghali(New York: United Nations, 1992) at para. 17. This report can be found online: <www.un.org/Docs/SG/agpeace.html>.

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The shortfall in the legitimacy of the international community, to intervene in domestic ethnic conflicts, also has practical consequences that are relevant for present purposes. These concern both the effectiveness ofinternational intervention and accountability for it.The relatively underdeveloped structure of the international communityand of international law gives rise to problems of accountability from the outsetof intervention in interstate ethnic conflicts. There are inadequate standardsto guide the decision to intervene. In practice, intervention has been uneven,influenced to a greater or lesser degree by the national interest of leading statesin the international community. By definition, there is no constitution for theinternational community providing the restraints on power that are supposed toapply within states.Drawing on these pressures and difficulties, here are some of the important questions that arise: What are the implications of changing concepts of state sovereignty forconstitutionalism and the legitimacy of states? When is international intervention justified? Is it possible to developguidelines for this intervention? What are the countervailing considerations that must be taken into account indetermining international intervention? In which cases has international intervention been successful? How was thissuccess defined? How can the problems of the legitimacy and adequacy of a constitutionalorder, forged through international intervention, be overcome? What should be done to ensure accountability for the integrity and outcomesof international intervention?The international community intervenes in a variety of different ways.The predominant manner is direct intervention through enforcement or peacekeeping. Direct intervention by international forces creates the greatestdifficulty, from the standpoint of legitimacy and accountability.I would conclude with some of the key questions that arise at the international level: What is the dividing line between enforcement and peacekeeping?

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What is involved in each?

Is it possible to develop guidelines for the constitution of internationalteams/forces that intervene directly in the case of intrastate conflict? In what circumstances are regional organisations likely to be more effectivethan international forces or coalitions? What mechanisms might be used to ensure that intervention is effective in thelong-term and short-term?

The principle of equality, which is at

the very heart of our political society,ordinarily serves as a backdrop againstwhich the state of legal relations betweenindividuals is assessed. This same principle is often used to measure the progressof democratic society. But what if it werealso used to measure the state of legalrelations between the various politicalentities comprising the federal State? Itfollows that the question of federal equality would have to be approached from adual perspective, one that considers bothfunctional and institutional dimensions.

With respect to the functional perspective, we tend to consider the federal entity,on the one hand, and the federated units,on the other hand, as having equal footingin exercising their functions and powers.Sovereignty is shared; each partner beingmaster of its domain of activity. However,if inequality is organized to the benefit ordetriment of either of the partners, oneshould wonder whether institutional realities are properly reflected in formal

* Correspondant de lAcadmie royale de Belgique et de lInstitut de France, professeur

arrangements and whether an authentic

federal system can develop under theseconditions.From an institutional perspective, wetend to think that a federal system ofgovernment, which rests on the functionalequality of the constituent entities, doesnot necessarily require their institutionalequality. For instance, the federated unitscan enjoy institutional arrangementsdiffering with respect to the organizationof public authorities or the distribution ofpowers among them. In other words,equality does not signify identity. Certaininstitutional differences can be tolerated,accepted, and even encouraged. Admittedly these should not lead to a situationwhere one federated unit is placed in asubordinate position in relation to theother units or the federal entity. However,these differences can also serve to distinguish, in a very clear manner, the status ofthe political entities comprising thefederal system. Thus, a federalism premised on the principle of equalityproduces a regime of shared sovereignty,and does not exclude the development ofdifferentiated sovereignties.

Foundational myths are narratives

that provide citizens with an account ofwhat their political association is aboutthrough selective interpretations of history, which are filtered through the present-day values and self-understandingsthat a community chooses to take on. Inrecent liberal nationalist writings, it issuggested that certain functions of thestate can only be fulfilled if its citizensbelieve that they are bound together bymore than just chance. Thus, the moralpsychology of citizenship requires thatcitizens internalize foundational myths inorder to ground identity and make thetaking on of redistributive and patrioticduties possible.

Federalism seems to stand in some

tension with this nationalist principle, ascitizens of federations belong to two ormore polities, whose relations are oftenquite fraught. This leads one to questionwhether federal citizenship can sufficiently anchor identity to provide citizenswith the kind of place in the world thatmore monolithic national identitiesafford.

* Canada Research Chair in Ethics and Political Philosophy, Director of the Ethics ResearchCentre at the University of Montral, Department of Philosophy, University of Montral.

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This paper offers an analysis of

myth-making in the Canadian federation,describing the contentious co-existence ofthe foundational myths held by Quebecand English Canada respectively. Theauthor contends that the impasse can bebroken by putting into question the nationalist principle, and holds that anall-encompassing myth is not required.Rather, through a process of mythic disengagement, it may be possible for twoparallel, independent sets of narrativesand symbols to exist within the context ofthe same set of federal institutions.

A. FOUNDATIONAL MYTHSModern nation-states encompass diverse peoples whose inclusion withinthe bounds of the same political institutions is the result of diverse historicalprocesses: wars, treaties, interdynastic marriages, colonisation, and postcolonial settlements. None of this amounts to the Hegelian march of reasonthrough history. Happenstance and accident, rather than any rational plan,have carved up the world politically.1Nationalism, which has without a doubt been one of the most potent political ideologies of the modern era, can in large degree be seen as an attempt toovercome, or at least to occlude, the random nature of political borders.According to its most basic formulation, nations exist pre-politically, and political institutions should ideally map out onto the borders between nationalgroups.There is therefore a considerable gulf between the facts on the groundwith respect to the formation of the political institutions of contemporary states,and the representation of the formation of states upon which nationalism feeds,according to which there is some orderly, discernable logic to the politicalevolution of the worlds population. Nationalism dictates that the borders ofpolities ought increasingly to coincide with the borders of nations.

1. For a fascinating account of the way in which one political border, that separating the UnitedStates and Canada, came to be constituted, see Francis M. CARROLL, A Good and WiseMeasure. The Search for the Canadian-American Boundary (Toronto: University of TorontoPress, 2001).

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In order to span the gulf separating messy reality from the more orderedpatterns of political evolution of the nationalist world-view, nationalists havehad recourse to foundational myths. Foundational myths are narratives thatpick out some aspects of a politys history and ascribe emblematic statusto them. Foundational myths provide citizens with an account of what theirpolitical association is about. Though they are based on highly selectivereadings of history, they are never wholly divorced from reality. And yet, theyare never simply accurate reflections of that reality, nor do they presentthemselves as such. They are interpretations of history, filtered through thepresent-day values and self-understandings that a community chooses to takeon, or perhaps most typically, that a political elite seeks to promote among thepopulation of a state, especially through its control of the educational system.They are, to use Mikhal Elbazs apt phrase, persuasive fictions (fictionspersuasives).2 By taking on and internalizing foundational myths, citizens of astate can come to believe that their political association is not simply the resultof blind, contingent, or historical forces.Many modern nationalists are fully aware of the fact that the constructionof national identities is at least in part mythic. That is, very few, if any, actuallybelieve both that nations exist pre-politically, and that it is part of the naturalcourse of human political development that nations ultimately come to acquiretheir own states. Why, then, do they not simply abandon nationalmyth-making and affirm wholeheartedly the contingency of state borders? Theclaim made by many modern nationalists in answer to this question is at the endof the day a pragmatic one: certain functions of the modern state can only befulfilled if its citizens believe that they are bound together within the state bymore than just chance. The moral psychology of citizenship, according to thisview, requires that citizens to some degree internalize foundational myths.What specific functions do foundational myths perform in the moralpsychology of the modern citizen of the nation-state? Let me quickly highlighta few:1.

Patriotism: As republican political philosophers since Machiavelli have

realized, the institutions of the modern state are not self-sustaining. Theyneed the active support of citizens. Democracies require citizens whovote, and that some proportion of them be ready to stand for office. Citizens must act as watchdogs against the corruption that political institutions are prey to when unchecked. They must react with indignation when

THE STATES AND MOODS OF FEDERALISM

officials act in ways that put these institutions at risk. In extreme cases,they must be willing to sacrifice their lives in defence of their politicalinstitutions against external threats. This requires that citizens perceivethe state and its institutions as having value, above and beyond thecontribution that they make, to the well-being of any one citizen. Theymust view the state as being about something greater than themselves.32.

Synchronic Distributive Justice: Most modern nation-states engage to

greater or lesser degrees in the redistribution of resources. The institutions of the modern welfare-state require that the income, consumption,and property of the better-off be taxed in order to ensure that the basicneeds of the less well-off are met. According to many modern nationalists, policies and institutions aimed at ensuring distributive justice facesevere strains of commitment. The better-off will be inclined to shirktheir responsibilities unless they can come to see the sacrifices thatthey make for the sake of their fellow citizens as somehow analogous tosacrifices that they might make for their own kin. This requires that citizens view themselves as bound together as parts of a collective we.4

3.

Diachronic Distributive Justice: States must also ensure

intergenerational justice. They must enact policies of saving and resourcemanagement that ensure that generations to come are provided with a fairallotment of resources. Citizens and their representatives must thereforebe motivated not to succumb to the temptation of generational selfishness. This requires that they view themselves as belonging to a historically extended community.

4.

Identity-anchoring: According to many modern nationalists, national

belonging constitutes an important aspect of the modern subjects senseof self. It helps to constitute her identity. Now identities are formed insome measure contrastively. We acquire a sense of who we are by distinguishing ourselves, both individually and collectively, from others. Oneof the functions of foundational myths is to provide people with a sense oftheir political communitys distinctiveness, of what sets it apart fromother political communities.

Foundational myths therefore perform both conative and epistemic functions. They motivate citizens to perform duties that might otherwise onlyoccupy a very limited place in their psychological economies. And they providethem with an important tool in the formation of their identities.

3. The historical link between patriotism and republicanism is nicely brought out in M. VIROLI,Republicanism (New York: Hill and Wang, 2002); for a modern formulation of the claim, seeC. TAYLOR, Cross-Purposes: The Liberal-Communitarian Debate in N. ROSENBLUM,ed., Liberalism and the Moral Life (Cambridge, Mass.: Harvard University Press, 1989).4. David Miller has insisted on this point : D. MILLER, On Nationality (Oxford: Oxford University Press, 1995).

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B. NATIONALISM AND FEDERALISM

Federalism stands in some tension with the nationalist principle. Federations are defined by a constitutional division of jurisdictions among differentlevels of government. Citizens of federations belong to two or more polities,whose relations are often quite fraught. Liberty for the individual is best preserved, the Federalist reminds us, when no one level of government can claimhegemony over its citizens. When officials from different levels of governmentare busy arguing with one another about who should have control over givenitems of public policy, chances are good that the freedom of citizens will beenhanced. Federal jurisdictional squabbles allow citizens to divide and conquer, as it were.But what of the supposedly irreductible aspects of modern citizens political psychology upon which the nationalist insisted, and which in his viewcalled for the development and inculcation of national foundational myths?How can citizens of federations come to feel motivated to make sacrifices onbehalf of the federal state and of federal institutions? By what mechanism willthey come to feel moved to contribute to the well-being of their less well-offfellow citizens and to future generations to whom they will not be relatedby blood? And finally, will federal citizenship be able to anchor identity sufficiently to provide citizens with the kind of place in the world that more monolithic national identities afford?The problem is particularly acute for federations that are born of thefusion of formerly self-governing national groups, as opposed to ones thatemerge from a decision on the part of central authorities to restructure alongfederal lines, for example, on the grounds of administrative convenience andefficiency.5 Federations that devolve powers down to federal units that do notcorrespond to any pre-existing political boundaries can presumably centralize myth-making, though the creation of federal units for what might initiallybe reasons of administrative convenience, can over time give rise to competingor parallel myths at the subnational level. But federations born of compactsbetween previously self-governing peoples must reckon with the fact thatself-governing peoples already possess their own established foundationalmyths. Their members feel primary allegiance, both synchronically and diachronically, to those who are encompassed by these myths and to the politicalinstitutions around which they are bound. Whats more, national groups thatdecide on a shared federal path generally share a history of conflict and enmity,to which federal union is supposed to bring an end. The foundational myths ofthe component groups of federations are often built around narratives thatcast federal partners in a negative light. Given this particularly unpromising5. I develop this distinction between federal integration and federal restructuring at greater lengthin my article entitled Towards a Normative Theory of Federalism (2001) 167 InternationalSocial Science Journal 75.

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starting-point, how can federations come to attract the sufficient allegiance of

citizens to ground projects of distributive justice? How can citizens be made toaccept the necessity of sacrifices being made on behalf of their institutions?How can citizenship within a federation come to provide a sufficiently robustanchor for individual identities? What kinds of myths can federations providefor themselves, and how should they go about inculcating them? If the nationalist claim, that the moral psychology of modern citizens is such that they need tofeel that the polities to which they belong are driven by some point buriedsomewhere in the nations past, is to be given credence, then it will be essentialthat federalists provide satisfactory answers to these questions.C. NOSTALGIC AND ASPIRATIONAL MYTHSBefore moving on to a (highly speculative) analysis of myth-makingin one particular modern federation, namely Canada, let me introduce adistinction between two kinds of foundational myths that will be important tothat discussion.Some myths are nostalgic. They identify some historical event as theorigin of the polity, the point at which a community coalesces into somethingmore than simply a group of individuals. A nostalgic foundational myth marksthe point at which a group awakens to its status as a collective subject of sorts,and becomes a nation fr sich. Moreover, nostalgic foundational mythsexercise a distinctive form of normativity upon the present. They present apicture of a community that is couched in a narrative that exhorts future generations to remain true to its historical foundations. Nostalgic foundational mythstend therefore to be conservative. They incline those who are in their grip toview the evolution of a community not as progress but as a falling away fromthe purity of an idealized past.Aspirational foundational myths, on the other hand, are morefuture-oriented. They too highlight an idealized historical event, but this eventis not represented as having given rise to the nation as such, but rather as settingan already constituted group off on a new direction. Whereas nostalgic mythsgive normative force to the past, aspirational myths mark breaks with the past.Thus, revolutions are paradigmatic events for aspirational foundational myths.Typically, the normativity of aspirational foundational myths has to do withvalues that the community is represented as having to strive for, rather thanaround some picture of itself to which it has to remain true. Revolutions areviewed as moments at which a community sets itself on the path toward therealization of these values.66. It should be noted, however, that the presence of a revolution is no guarantee that a societypossesses an aspirational foundational myth. Many Eastern and Central European states,founded or refounded by revolutions in the wake of the fall of the Berlin Wall, view theirpost-revolutionary condition as one in which they are better able to reconnect with an imagined,idealized, pre-Soviet past.

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The distinction between aspirational and nostalgic foundational myths

clearly marks a continuum rather than a dichotomy. Different states fall atdifferent points along this continuum, at quite different distances from theopposite poles. Although no state perfectly exemplifies one or the other of thesepoles, France and the United States are probably closest to the aspirational pole,while Germany and England lie closer to the nostalgic.Federations born through integrative rather than through restructuringmechanisms, that is, federations that are born of the decision by formerlyself-governing nations to create a higher, federal level of government to whichthey would all be bound, are genetically inclined toward nostalgic foundationalmyths. The reason is fairly plain to ascertain. Integrative federalisms areusually born of complex negotiations between formerly self-governing politiesconcerning precise division of powers, and the relative weights of the constitutive federated entities within bodies, such as parliaments, courts, etc. The stability of federations depends upon the terms of the original compact beingrespected. One way in which to ensure that the original contract will not betampered with is by mythologizing it, by picking out the historical moment offederation as central to a nostalgic mythic narrative. This event then comes totake on normative force for the future, as do all foundational moments invokedin nostalgic foundational myths. Through such a myth celebrating the momentof compact, the terms of the contract take on normative force in the moralpsychologies of citizens and of their political leaders. Thus, for example,Switzerlands national myth, marked every August 1st, commemorates thedefensive alliance of the cantons of Uri, Schwyz, and Unterwald. And Canadasfoundational myth has for a long time been that of the two founding nations.What are the advantages and disadvantages of these two ideal typesof foundational myths? They are in a way the mirror images of each other.Nostalgic myths are the most perspicuous from an epistemic standpoint. Theydelimit communities neatly from one another, and are thus ideally suited toanchoring identities. To the extent that nationalists are right to claim that theindividual psyche needs to feel that it possesses a distinctive home in the world,a mythic narrative that tells us how this specific community came to be fulfilsan important function. Nostalgic narratives are however static and conservative, and do not provide members with any guidance that might allow them tochoose between alternative societal paths. Nostalgic myths tend to provide, forbetter and for worse, clear criteria of membership and belonging and a clearsense of the distinctiveness of a political culture. But they do not typicallyprovide clear value orientations. Aspirational myths are, on the contrary, oftendeliberately vague on the issue of terms of membership (anybody can afterall in principle be a culturally neutered citoyen and subscribe to the valuesof libert, galit, and fraternit), but they give clearer indications on thevalues that societies who accept them ought to attempt to realize throughtheir development. To revert to the (non-exhaustive) list of functions served215

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by foundational myths, developed in the previous section of this paper, we

might conclude that nostalgic myths are more effective at anchoring identity(function 4), while aspirational myths, especially those born of post-feudalrevolutions, are better at motivating synchronic and diachronic solidarity(functions 2 and 3).D. MYTH-MAKING: THE CASE OF QUEBEC AND CANADAWhat follows is a highly speculative account and analysis of the mannerin which the challenge of myth-making has been faced in one modern federation, namely Canada. I will try to understand the impasse in which Canadianspresently find themselves in terms which I hope will be useful for understanding other federal contexts.What are Canadas foundational myths? I would claim that it has historically had two. The first fully affirms Canadas dual nature, and reverts to acompact between two founding nations. While this mythic vision has onlybeen ambivalently held by English Canadians, it has been central to theFrench-Canadian view of what Canada is about.7 According to this view ofCanadas origins, the federation results from the federal integration of twoformerly self-governing peoples, who agreed to a confederal path on theassumption that this path would always respect the principle of the equality ofthe new federations component nations. Over time, the entities to which thetwo nations notion referred came to be de-ethnicized and territorialized.Belonging to one or another of these nations was no longer a question ofbeing of a particular ethnic group, irrespective of territorial location. FrenchCanada came to be equated with the province of Quebec, while English Canadaencompassed the nine other provinces. Over time, therefore, the principlebequeathed by the myth of the compact of two equal founding peoples gave riseto the view that the Canadian federation was really a compact between Quebecand the population of English Canada, which happens to be spread out over nineprovinces.The two-nations foundational myth, though invoked rhetorically byQuebec nationalists, has in fact been left behind by history. Most obviously,one of the two parties referred to by the myth no longer perceives itselfas a nation in the relevant sense, if it ever did. That is, there is no sense ofEnglish Canadianness that encompasses the English-speaking provincesalone. As we shall see, a vision of Canadian identity has become prevalentin English-Canada, but it is one that encompasses the country as a whole.The two-nations myth requires that both nations perceive themselves as7. For a reading of Canadian history clearly grounded in the myth of two founding nationselevated to the status of norm, see G. LAFOREST, Trudeau et la fin dun rve canadien(Qubec: Septentrion, 1992).

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self-standing nations distinct from the nation with which it has entered intocompact, and distinct as well from the federation to which the union of the twonations gave rise. These conditions are quite clearly not fulfilled in the case ofEnglish Canada.More subtly, however, I would suggest that the two-nations myth hasfor all intents and purposes been abandoned by Quebeckers as well. Quebecidentity is now resolutely territorial. To be a Quebecker does not mean belonging to an ethnoculturally defined nation dispersed throughout Canada. It meansbeing a citizen of the territorially rather than ethnically defined Quebec state. Iwill return to this point below.Coexisting with this vision of two nations, there has always been a rivalvision of Canada as not an integrative federation fusing two formerlyself-governing polities whose equality had always to be respected through anyand all changes to the Canadian political order, but rather as a restructuredfederation, one in which provincial borders do not delimit national groupsbut rather administrative regions. These regions have significant legislativeauthority, to be sure, but they are granted these powers on general federalistprinciples to do with the recognition of the spatial dimensions of Canadamaking central government impracticable, as well as the importance of thedispersal of power and of preserving liberty. According to this vision, Canadais multicultural and bilingual, but not binational.This account of Canada has been present throughout Canadian history.The Durham Report, which, it must be remembered, was perceived at the timeas very much a liberal, progressive set of proposals, partakes of its spirit. Butthe most successful promoter of this vision of Canada was of course PierreElliott Trudeau. Its clearest political expression has been Canadas 1982 Constitution. This Constitution, and especially its Charter of Rights and Freedoms,established a vision of Canada as a nation of free and equal individual rightsbearers inhabiting ten equal provinces, none of which possess the status of constituent nation, none of them distinct in any constitutionally relevant way.8This vision of Canada has become tremendously popular outside Quebec.The term Charter patriotism aptly characterizes the way in which manyCanadians outside Quebec relate to the Canadian state. What Canada is about8. Nationalist detractors of the Constitution in Quebec have spent the last 20 years complainingabout the absence of recognition of the Quebec nation in the document, which does after allrecognize aboriginal nationhood. Placing oneself in the spirit of the Constitutions foundingfather, it is clear that the attribution of nationhood to aboriginal peoples is perceived by thedrafters as at best a backhanded compliment. The implication is clearly that aboriginal peoplescleave to a pre-modern, ethnic conception of nationhood that the European members of thefederation have overcome. They are, according to the spirit of the Constitution, members of ade-ethnicized, political nation called Canada.

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for them is the protection and promotion of fundamental liberal and democraticvalues within a state that has almost completely freed itself from its historicalethno-cultural origins. Whereas the earliest English-Canadians viewedthemselves still in the main as subjects of the British Crown, the reference tothings British among English-Canadians today is residual and folkloric at best.This is not to say that the values and principles enshrined in the Constitutionare not widely affirmed in Quebec as well. But they do not inform the identitiesof Quebeckers in the way that they do those of English-Canadians.To revert to the distinction made in section II, Canada has been historically divided between a nostalgic foundational myth, pointing back to the historical compact of two equal, self-governing nations, and an aspirationalfoundational myth, which has of late come to be associated with the 1982Constitution. Moreover, each myth is as it were an affront to the other. Thosewho hold the two nations conception view the defenders of the Charter-basedvision as morally corrupt, having chosen to ignore the terms of a solemncompact by which they are still morally bound, whereas the latter view theformer as hopelessly mired in a pre-modern conception of political nationhood.The failure of the Meech Lake Accord can in some measure be read as thefailure of the attempted synthesis of Canadas nostalgic and aspirationalfoundational myths.Why does the two nations view still resonate in Quebec? After all,though it is still invoked rhetorically by Quebec politicians and intellectuals asa way of criticizing various aspects of present-day constitutional arrangements,it has quietly been abandoned by Quebeckers themselves. Indeed, thetwo nations myth was very much based on the idea of two ethnoculturallydefined nations entering into federal union. And it has been one of the centralthemes of Quebecs intellectual and political life these last few years thatQuebecs distinctiveness is not to be understood ethnoculturally. Quebecsidentity is linguistic and territorial. It is no longer to be understood in terms ofethnicity or of thick cultural markers such as religion. The two nationsview should in all logic be destined to slip into disuse, even in Quebec, for lackof an empirical referent. The two parties to the mythic compact of two nationssimply no longer exist.I believe the resilience of the two nations view in Quebec can in largemeasure be explained by the persistence of Quebecs own dominant myth. Thetransition from an ethnocultural to a political and territorial conception ofnationhood has of yet not been accompanied by a concomitant shift in Quebecsfoundational myth. The melancholic foundational myth that lay at the heartof French Canadas self-understanding, a myth whose central narrative placesthe Conquest by the English at its core, but which is also constituted by suchevents as the abandonment of the new colony by the French, the repression

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of the Patriot Rebellion of 1837, the long period of political and economicdisenfranchisement known as la survivance, and even by the Nuit des longscouteaux, during which the premiers of the nine other provinces concocted aFaustian bargain with the federal government that ended up excluding Quebecfrom the federal refounding, was simply taken over by Quebec politicians andintellectuals, who viewed it as Quebecs mission to overcome the injustices andhardships visited upon French Canada.9 The Quiet Revolution, a periodduring which French-speaking Quebeckers created the contemporary Quebecstate and began to assert their economic force, has not taken the place of theConquest as Quebecs foundational myth, as other revolutions have done inother parts of the world. If anything, the melancholic national myth reached itsapotheosis after the changes wrought by the Quiet Revolution were very muchin place. Buttressed by Freudian and/or Marxist explanatory frameworks,French-Canadas historical defeats came to be seen, in the prose of PierreVallires and the poetry of Gaston Miron (to name but these two), as havinggiven rise to the same kinds of traumas and infantile disorders amongQuebeckers as colonialism did, on Frantz Fanons famous analysis, among thepeoples of North Africa.It is possible that the hold of foundational myth of Conquest is finallygiving way. There has been an abundance of writing in recent years suggestingthat Quebec must overcome the Conquest, and provide itself with a moreaffirmative foundational myth. For some, this means affirming as assets aspectsof Quebecs culture and political situation that have within the previous mythicorder been perceived as posing problems: its Americanness, its constitutivecultural hybridity, even its unsettled political status. But these attempts atrefoundation are still very much embryonic, and do not have anything like thehold upon the psychological economy of Quebeckers that the myth constructedaround the Conquest has. Quebecs foundational myth is still very much anostalgic one.The point I want to make about Quebecs foundational myth is that it isconceptually connected to the two nations myth. Viewing present-dayQuebec history through the lens of the Conquest requires viewing Canadianhistory, up to and including the present Constitutional dispensation, as a continuation of the Conquest by other means. It requires viewing our contemporarypolitical debates and disputes as still pitting against one another the two nationswhose armies faced off on the Plains of Abraham. The hold of a nostalgicmyth upon Quebecs own political imaginary leads to its being unable toview Canadas aspirational myth as anything but a betrayal of the terms ofthe original, two nations compact.

9. This national myth is very ably traced through its many twists and turns in J. MACLURE,Rcits identitaires. Le Qubec lpreuve du pluralisme (Montral: Qubec-Amrique, 2000).

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How can we explain the ease with which English Canada latched onto therefoundation myth associated with the 1982 Constitution? Part of the answersurely has to do with the fact, as noted above, that English Canada has neverreally had its own foundational myth. When English-Canadians ceased viewingthemselves as subjects of the British Empire, the only sense of peoplehood thatbound them together was one that included French Canada, and then Quebec, aswell. Kenneth McRoberts puts it thus:With time, and the decline of Britain, the sense of a British nationality atrophied.By and large, it was replaced with a new conception of a Canadian nationality,directly attached to the Canadian state and unmediated by any previous identity.Few Anglophones have felt any attachment to a distinctly English-Canadiannationality.10

And so, English-Canadians have over time come to conceive of

themselves as simply Canadian, rather than as English-Canadian, and haveadopted a foundational mythology that matches this self-conception, one thathas eschewed any reference to Canadians cultural or linguistic belongings.Philip Resnick puts the point nicely:I [...] cannot claim that I am an English Canadian comes more easily to my lipsthan I am a Canadian. We outside Quebec have been socialized to think ofourselves as Canadians; if any other term might spring to mind, it is far morelikely to be a provincial or regional term of identity like Westerner or BritishColumbian or Ontarian than English Canadian.11

Now, this is another way of saying that English Canadas foundational

myths are no longer distinctively federal. After all, even the most unitary ofstates, say France, can accept that a central political identity be accompanied byregional identities, as long as it carries no political freight. This is not to say thatCanadians outside of Quebec do not value federal institutions, or that they areless likely to react with indignation when the federal government is perceivedas having violated provincial jurisdictions. But what it does mean is thatfederalism does not inform English-Canadian identity in quite the same way asit does that of Quebeckers. The latter still view Canada as an integrative federalism, one in which formerly self-governing peoples freely chose to providethemselves with common federal institutions. English-Canadians, on the otherhand, view Canadian federal institutions as the result of restructuring processes,whereby a unitary state chooses to provide itself with federal subdivisionsfor reasons of administrative efficiency and/or on general federalist grounds ofliberty preservation.10. K. McROBERTS, Misunderstanding Canada (Oxford: Oxford University Press, 1997) at 3.11. P. RESNICK, English Canada: The Nation that Dares Not Speak its Name in K.McROBERTS, ed., Beyond Quebec. Taking Stock of Canada (Montreal: McGill-QueensUniversity Press, 1995) at 85.

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English Canadas mythic self-understanding does, however, make

implicit reference to Canadas constitutive cultural duality. As we have seen,one of the functions of a foundational myth is to ground collective identity in away that makes boundaries clear. Identities are in part formed contrastively.People gain a sense of who they are in part by getting clear on whatdistinguishes them from others, and especially from those who are close by, andwith whom the risk of assimilation is greatest. Freud spoke in this context of thenarcissism of small differences. Now, as became quite clear during the FreeTrade debates, there is considerable anxiety among Anglophone politicians andintellectuals over the distinctiveness of Canadian identity, and in particularover its difference from American identity. Reference to the fact of Canadascultural duality is an important element in English Canadas dealing with itsanxiety over its identity. There may be no way of distinguishing Canada and theUnited States as far as multiculturalism is concerned. Each is as much acrazy-quilt as the other and the tired clich of the mosaic and the melting-pothas become difficult to take seriously. Continental economic integrationwill also have a significant impact in bringing the two societies closer together.As long as English-Canadians can point to a French-speaking society withinits midst, however, they are in possession of a robust fact that allows themto allay the fear that their collectivity will come over time to resemble that ofthe United States.So the mythic self-understandings of both Quebeckers and EnglishCanadians are shot through with contradiction. Quebeckers continue to cleaveto a vision of Canadian federalism as resulting from a pact between two distinctself-governing nations that has been rendered obsolete by history. Part of thereason for this is that the melancholic myth of Conquest, that remains central toQuebeckers understanding of their own collectivity, requires that the twonations view still has some objective referent. And English-Canadians have byand large bought into a vision of Canada as a bilingual and multicultural societyof equal, rights-bearing citizens, made up of ten politically equal provinceswhose existence is perceived as an artefact of central Canadian decentralizingprocesses. In fact, however, we have seen that Canadian identity very muchdepends for its distinctiveness upon the presence of a thriving, territorially-based Francophone culture that provides Canadians with a way of clearlydemarcating themselves from the United States.How can this impasse be broken? One answer has already been suggestedin the foregoing few paragraphs. All that is required is a bit more lucidity on thepart of both parties to Canadas mythic disagreement. Quebeckers need torealize that conflicts of the past cannot simply be mapped on to those of thepresent. The political actors in todays Canadian drama are not the direct, lineardescendants of the parties who fought it out on the Plains of Abraham. Quebecmust adapt its self-understanding to Canadas changing reality. Similarly,English Canada must come to realize that the reinvention of Canada as a nation,221

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bilingual and multicultural from coast to coast, must be altered. To the extentthat English-Canadians have an identity stake in bilingualism, they must alsorealize that Quebec cannot simply be treated as a province on all fours with thenine others. The success of Quebecs national project is central to Canadiandistinctiveness. Charles Blattberg writes, in my view correctly, of Quebecsresponsibility for maintaining the French fact on a continent that isoverwhelmingly Anglophone and of the normative consequences of thisfor Quebecs distinctive place within Canada.12 Comparable responsibilitiessimply do not exist in the case of the nine other provinces.We have seen, however, that foundational myths do not simply reflectfacts. They are selective interpretations of history whose aim is to anchorindividuals sense of identity, and to constitute an assemblage of people intoa moral community, one in which redistributive obligations and sharedresponsibilities for shared institutions are taken on willingly.Clearly, Canadas foundational myths are no longer functional. Neitherone of them has succeeded in securing the assent of all sectors of Canadasdiverse population. They are both overtly rejected by the other side. And aswe have seen, they are tacitly problematic even from the point of view of thosewho rhetorically make use of them.What might a Canadian federal refoundation look like? I can see anumber of alternatives. One would be for, what might paradoxically be referredto as, a new nostalgic foundation. Were Canadians fully to take on the important place that Quebec plays in Canadas sense of its own distinctiveness, andwere Quebeckers to develop a more affirmative, independent foundationalmyth, one that does not depend upon viewing independence as a condition forthe overcoming of historical injustices that still resonate through the Canadianfederation, then one could imagine a renewal of the pact between Quebec andEnglish Canada that would supersede the original two nations pact. Canadacould come to view itself as the integrative federal union of two nation-states,one of which happens to have undergone a federal restructuring into nineprovinces. The asymmetry between Quebecs conception of itself and of itsplace within the federation, and the other provinces conception of their placewithin Canada, would thus have been addressed head-on. Integrative andrestructuring federalism, and their accompanying myths, would no longer be atwar with one another, both claiming to give a full account of what Canada as awhole is about; rather, they would both possess, and be seen by both partiesto possess, their proper place within the federation.

THE MORAL PSYCHOLOGY OF FEDERALISM

This would require a wholesale constitutional restructuring of Canada,

the kind called for by Charles Taylor in his brief to the Blanger-CampeauCommission.13 Would restructuring along these lines be desirable? I believethat it would not. There are pragmatic reasons for this. Such a restructuringwould in the present political context be politically very difficult to sell inEnglish Canada, where talk of a special constitutional status for Quebec hasbecome anathema. Its feasibility would probably require that Quebeckerschange the balance of power as it presently stands, for example through amandate granted to its provincial government to renegotiate the terms ofpartnership with Canada. This would be a risky strategy for those concernedwith placing Canada on more stable foundations, as there is no guarantee thatthe offer of partnership, tendered by a Quebec government so empowered,would be taken up by its putative partner.But there is a reason of principle for being skeptical about the prospect ofa renewed two nations compact. As we have seen, nostalgic foundations areinherently conservative, and view social change and evolution as a normativelyundesirable falling away from a perceived pure origin. Modern societieslike Quebec, and Canada as a whole, are simply too dynamic and volatile forthere to be any guarantee that the self-conceptions that went into framing theterms of the compact will hold for more than a handful of generations. As Imentioned above, federal political units born of federal restructuring can cometo develop, over time, their own national or quasi-national myths. Immigrationcan alter the cultural and linguistic make-up of a federated unit in ways thatmake the original terms of the compact moot. One can imagine, for example, anevolution of British Columbia over the course of the next few generations thatwould have this effect.Ideally, a Canadian refoundation would need to be able to accommodatefairly rapid cultural and demographic change. Can one imagine an aspirationalrefoundation that might allow Canada to evolve, while grounding a sense ofshared community and making possible a sense of shared obligations andresponsibility? Trudeaus attempted recreation of Canadian identity around the1982 refoundation can be seen in this light. And it has been very much a failure.The values enshrined in the Constitution are undeniably shared by Canadianson both sides of the two nations divide that Trudeau sought to overcome. Butit is one thing to share values, and quite another to share an identity.14 It is clearthat though English Canada has by and large taken on the Trudeaurefoundation, this has not been the case in Quebec.13. C. TAYLOR, The Stakes of Constitutional Reform in C. TAYLOR, Reconciling theSolitudes. Essays on Canadian Federalism and Nationalism (Montreal: McGill-QueensUniversity Press, 1993) at 140.14. The point has been well made by Wayne Norman: W. NORMAN, The Ideology of SharedValues: A Myopic Vision of Unity in the Multi-nation State in J.H. CARENS, ed., Is QuebecNationalism Just? Perspectives from Anglophone Canada (Montreal: McGill-QueensUniversity Press, 1995).

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What is needed, therefore, is a mythic refoundation of Canada that recognizes the distinctive political identities of English-Canadians and ofQuebeckers, while not freezing either identity, or the encompassing Canadian identity, in a way that would make them incapable of accommodatingchange. Now as we have seen, there are principled reasons for rejecting both anencompassing nostalgic refoundation, and an aspirational one of the kindattempted by Trudeau. What is left?My suggestion is that we must put into question the nationalist principleaccording to which states require foundational myths of a nationalist kind inorder to ground identity, and to make the taking on of redistributive andpatriotic duties possible. I have made the case in some detail elsewhere, and sowill not rehearse it here.15 The point in the present context is that the conditionsof a Canadian refoundation might be less exigent than we have been led tobelieve by the hold of nationalist assumptions about unity that, at the end of theday, have been shared in the Canadian context both by Quebec nationalists andby partisans of the Trudeau refoundation. We do not need an encompassingnational myth. What is probably required is that the foundational myths of theconstituent parts of the federation not be mutually exclusive, that is, that theynot incorporate federal partners in terms that these partners reject. Quebeckershave for much of their history defined their own identity, in part, around amythic vision of English Canada as historically continuous with the perpetrators of the Conquest. And English-Canadians have built their identity arounda vision of a bilingual country in which the guarantor of the countrys bilingualism is reduced to the status of a province, whose linguistic distinctivenessbears no constitutional weight. Clearly, the national myths of the partiesto refoundation must be altered in ways that do not incorporate the other in amanner that it rejects. There are signs, as I mentioned earlier, that Quebecsnational myths are evolving in this direction. There is a perceived need, on thepart of many intellectuals and political leaders, to develop a more positive,affirmative and independent national self-conception; one that is independentof any constitutive reference to English Canada, and on the basis of whichrelations with English Canada could be re-established on a healthier foundation. English Canada must, for its part, move in an analogous direction. It musteither provide itself with a foundational myth that does not incorporate Quebecin terms which the latter does not accept, or, as some commentators havesuggested, do away with mythological underpinnings altogether.The result of this process of mythic disengagement is that we wouldhave two parallel, independent sets of narratives and symbols side by side, as itwere, within the context of the same set of federal institutions. These federalinstitutions would, in turn, be possessed of no overarching set of myths, at least15. See D.M. WEINSTOCK, Building Trust in Divided Societies, (1999) 7:3 Journal ofPolitical Philosophy 287.

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none imposed voluntaristically, in the manner in which Pierre Elliott Trudeau

attempted to rewrite Canadian foundational myths. (History can of courseprovide loosely knit federations with foundational events that serve as cruciblesfor a new set of truly shared national myths. Such, for example, is the roleplayed in forging a strong sense of Australian identity by the tragic militaryexperience of Gallipoli.)Can a federation survive the absence of an overarching, quasi-nationalmyth? Here, we must distinguish between reasons that might motivate diverseself-governing peoples to join together under federal institutions, and reasonsthat people might have to sunder federal institutions that already exist.Arguably, it might be difficult to convince people to relinquish sovereignty,and to join under common institutions, unless some narrative can be foundthat suggests that, in fact, they were meant to be together within commoninstitutions. This is suggested by the quite deliberate search that is nowoccurring among European politicians and intellectuals to define a sense ofcommon Europeanness, somehow buried in European nations sharedhistory.But the Canadian federation exists, and functions tolerably well, in securing the basic constituents of a decent life for the majority of its citizens. Even inthe absence of overarching narratives that might provide its citizens with somesense of the federation, there are weighty pragmatic reasons for citizens touphold the federation, even if no mythic narrative exists that might somehowimbue it with the aura of necessity. The Republican political tradition remindsus that a sense of shared responsibility for common institutions can be generated even in the absence of any sense, on the part of citizens, that they are unitedto their fellow citizens by something more than the mere fact of living undershared institutions. Lintrt bien compris might, at the end of the day, proveas reliable a mechanism for generating the kind of allegiance required by democratic institutions, as would a sense of national kinship.E. CONCLUSIONSWhat lessons can be gleaned for federations more generally from thishighly speculative exploration of Canadas constitutive myths? A single casedoes not provide a basis for generalization. At most, we can extract somehypotheses that can perhaps be of use in coming to an understanding of themythic structure of other federations.A first hypothesis is that integrative federalisms incline naturally towardnostalgic foundational myths, that highlight a historical episode at whichthe compact between formerly self-governing polities can be taken to haveoccurred, and imbues the terms of the compact with normative force for thefuture.225

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A second suggestion that emerges from this discussion is that nostalgic

foundations are inherently conservative, and risk obsolescence as societiesevolve and change.Third, there is risk involved in any attempt at voluntaristic refoundationsof integrative federalisms, of the kind attempted by the Liberal Party of Canadaunder the leadership of Pierre Elliott Trudeau. The parties to a federal agreement usually possess their own foundational myths, and attempts atrefoundation risk being rejected by one or more parties to the federal agreementon the basis of their own, historically better established, self-understandings.Fourth, it might be a condition of the long-term stability of integrativefederalisms that the constitutive myths, around which the identities of thevarious parties to a federal agreement coalesce, not incorporate other parties onterms or according to a vision of the federal union that these other parties cannotaccept. One way of satisfying this condition is for the various parties to a federalagreement to develop independent foundational myths.Finally, there is an asymmetry between the kinds of mythic resources thatare required in order to set up a new federal order and those that are required tomaintain an already existing federal order. Self-governing peoples may need tofeel that there is some historical narrative that connects them, in some morethan accidental way, to the peoples with whom they are preparing to cede someof their sovereign authority within an overarching federal union. The search fora common historical identity that is currently going on in some quarters inEurope is symptomatic of this felt need. But federal institutions that havealready established themselves may be able to survive the obsolescence ofthe nostalgic foundational myth upon which they were originally grounded,and thrive on purely pragmatic grounds. Another way to make the point is tosay that a nostalgic foundational myth may be part of the initial conditionsthat must be in place in order for an integrative federalism to get off the ground,but it is not necessarily a condition that must be satisfied at all later points in afederations evolution.Further research into the foundational myths of other modern federationswill obviously be needed in order to make good these suggestions, derivedfrom the Canadian example, or indeed to refute them. As federalism spreadsaround the globe as a mode of modern governance, it will be important to geta clear sense of how federations can anchor themselves in citizens moralpsychologies, and of whether, as nationalists claim, this hold will always bemore tenuous and fragile than is the case for modern nation-states.

A truly modern and comparative

approach to federalism necessarily raisesthe risks and difficulties associated withterritorial federalism, or at the very least,it will bring up the variants of and modifications to territorial federalism in caseswhere minorities are not geographicallyconcentrated. Several authors haveproposed a possible alternative to theconcept of territorial federalism.

This text explores the intricacies and

applications of federalism, predicated ona personality principle, through a detailedstudy of the case of Lebanon and of otherpresent and historical national positions.Similarly to territorial federalism, thistype of federalism is accompanied byadvantages and inconveniences that arediscussed in the text. The author contendsthat this challenge requires the democ-

The idea of federalism, just like the

idea of the unitary nation-state, is ametaphor for imagining the manner inwhich citizens conceive who they are andhow they organise the relationshipsthrough which they pursue their purposesand ambitions in concert with othersacross the entire range of human interaction.

Most scholars would find this to be a

surprising way to characterise federalism. For them, federalism presumes thepolitical state. They do not consider thefederal aspects of the family, the neighbourhood or the workplace. Moreover,they see federalism only in rational structures of institutional decision-making,and canonical texts meant to attributeconstitutional virtue. Finally, their conception of federalism presumes a fixed,monistic arrangement of normativeinstitutions and normative forms.

In revising this essay I have sought neither to modify the discursive style of the speech as delivered nor to burden the text with exhaustive footnotes to the obvious and self-indulgent citationsto my own papers. Key thematic references are listed in a brief bibliographic essay attached asan Appendix. I should like to thank Harry Arthurs, Richard Janda, Nicholas Kasirer andDesmond Manderson for their comments on earlier drafts. None, obviously, bears any responsibility for my failure to attend to his counsel.

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T o s e e f e de r al i s m on l y a s t h eallocative output of a document called aconstitution is to forget that federalismcomprises both implicit and explicit textsand practices. These are constantly beingchurned by everyday interaction in multiple social settings.A kaleidoscopic federalism, as the ideais argued in this paper, acknowledgesthese several dimensions and these shifting distributions of authority. It is fundamentally a federalism of aspiration, ofvirtue, that keeps contingent the interplayof age nc y and s t ruc t ur e i n t h eself-construction of citizens.

INTRODUCTION: THE FACES OF FEDERALISM

My adolescent children are sophisticated political actors. Their quotidianpolitics are just as rich, as complex, and as emotionally engaged as the publicpolitics of the state. In fact, their everyday lives are surely richer, more complexand more emotionally engaged than the public lives they are consigned eventually to lead as Canadian citizens.Already my children know and puzzle about power, legitimacy, dueprocess, separation of powers, and third-party decision-making. Already theyare experienced in negotiating around the federal complexities of dividedsovereignty and overlapping jurisdictional attributions. Let me briefly suggestseveral sources and sites of their expertise. Behind the simple expressions mum and dad there flourish sociallyconstructed roles and relationships of affect, authority and ambition bothmore intense and more nuanced in their demands than appeals to patriotism. Apparently natural biological links evoked through words like aunt anduncle belie strong commitments about inclusion in and exclusion from themoral community which overpower such formal group attachments aspolitical citizenship. In watching the bonds of differentiated and fine-grained love that surroundthe new-born child of a cousin, they locate themselves as the carriers ofmanifold identities that constantly shift, realign, and re-order in response toaspiration and accomplishment.

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The gifts, bribes and other inducements flowing from grandparents thatoften (sometimes intentionally, but usually inadvertently) undermine thereciprocity of a weekly allowance resonate with the logic of the spendingpower. Tacit and sometimes not so tacit conspiracies between siblings, often sealedwith the unstated threat of snitching, galvanize allegiances within andover against the whole family in a manner that tracks the shenanigans ofeveryday federal-provincial policy negotiations. Awakening to the wilfulness of behaviour and the ambiguities and bivalenceof agencyan agent also being one who is capable of sufferingas shapedby adolescent discovery of girlfriend or boyfriend poses the identity question: Who am I? Wait till your father gets home or you better check that out with yourmother are mere hints at structures of decision-making that make the lawof American federal courts and federal jurisdiction seem monochromatic.Commitment, membership, exclusion, identity, agency, taxing, spending, administering, and decision-making are the life-blood of all relationshipsand all human relationships are intensely political.Law, whether the static law of the modern state or the dynamic law ofeveryday life, mediates both the politics and all the relationships themselves.Law, especially when conceived as constitutional law, provides enfranchisinginstitutions, processes, and regimes to facilitate agency, to stabilise interactionwith others, and to allocate human choice in pursuing individual and collectivepurposes. In this light, federalism is but one way of apprehending, organising,and construing these constitutive capabilities of the legal enterprise. Federalismis centrally about the deduction, division, and allocation of power, aboutmultiple and competing sources of authority, and about the complex and overlapping identities of agents.In this paper, I consider various dimensions of contemporary federalismits motifs, its ambitions, its sites, and its modes. A key objective is to movetowards an understanding of federalism that is not grounded in republican legaltheory. My foundational thesis is that federalism is the normal condition ofhuman interaction, and it always has been. The so-called unitary state ofpost-enlightenment legal theory is aberrant as an expression of human affectand affiliation. Abandon the fixation with territorial nation-states and newvistas of federal experience and practice appear. The expression kaleidoscopicfederalism is meant to signal, by conjuring ever-changing colours, shapes andpatterns fixed within a constructed order, the scope and scale of these vistas.

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A. PLURAL MOTIFS: RECONSTITUTIVE (OR DIALOGIC)

FEDERALISMThe justifications for federalism as a constitutional form are well-workedover in Euro-American legal theory. I need not repeat them here. Yet I wouldnote that by focusing on federalism as it emerged in reaction to the nationalstate-building project of the eighteenth and nineteenth centuries, theorists do adisservice to the earlier federal endeavours of Mesopotamia, China, Rome, theAztec and Inca Empires, and the Iroquois confederacy, among others.Moreover, this focus deflects attention from other domains of federalexperience. For example, I take as given that the antecedents of modern federalism theory can be located in the founding myths of Western religions.Who would deny that Egyptian, Greek, and Roman polytheism is federalizedtheology? Some Gods have dominion over particular domains of human experience; others are ascribed a different jurisdiction. So too with monotheisticreligions. Can we not see a federal intuition in the central Judaic distinctionbetween the Talmud and the Torah? Or in the Christian doctrine of the HolyTrinity?These other sites and modes of federal experience are explored later inthis paper. For the moment, I simply want to use the standard politicoconstitutional account of federalism to review the two main orienting motifsdriving federalism projects. Conventionally, it is said that regardless of thesocio-political rationales for creating a federal state, the structural outcome hasto be either unifying (aggregating, integrative) or disunifying (disaggregating,devolutionary). I disagree. All federalisms emerge from both centripetal andcentrifugal tendencies. In brief, all federal projects are reconstitutive andcontinuously reconstituting.Consider first unifying federal projects. The United States of Americais generally thought to be the archetypal contemporary federal state of this character. In the mythology of American exceptionalism, the federal constitutionresulted from a compact among several previously separate constituentunitse pluribus unum. A like goal of unification has sustained other federalendeavours like, for example, the Australian commonwealth.But in both these instances a disunifying motif was also present. In thecase of the United States, this disunifcation had both explicit and implicitdimensions. First, the fact that large regions of British North America (notably,Quebec, New Brunswick, Nova Scotia, Newfoundland, and Prince RupertsLand) were excluded recalls that prior to unification there was militarilycontested separation from the Imperial mother country. Hence, the commonplace that the secessionist movement in the thirteen colonies (popularly, thoughinaccurately, known as the American Revolution) actually created two states264

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the United States and after a nine decade gestation, Canada. Similarly, in theAustralian case, one might note that the federal idea was preceded by a claimfor colonial devolution, and initially embraced an Australasian political projectthat also included New Zealand and Fiji.Second, for every explicit set of political institutions being created, anumber of implicit political institutions are being overthrown or attenuated. Inthe United States, the new federal state ultimately destroyed the emergingfederalism of the slaveholding states. While a plethora of constitutionalarrangements acknowledged the sectional nature of the new union, it took acivil war to remind everyone that an explicit federation usually winds updelegitimating all manner of implicit or emerging confederacies. Those whoimagine unifying federal projects as involving only official institutions woulddo well to ask, in each case, what implicit federations are being destroyed ordisabled.The occasions for successful disunifying federalism are fewer, in largemeasure because of the socio-political origins of devolutionary movements.Because disunifying federalism is frequently tied to ethnocultural claims ofblood and belonging, it is difficult to arrest the fractionating impulse once ithas begun. Each newly created subnational unit tends to push for its ultimatepolitical independence rather than embrace federal interdependence.The break-up of the Austro-Hungarian and Ottoman Empires after WorldWar I, and of the former USSR and Yugoslavia more recently, are instructive. Itremains an open question whether devolution in the United Kingdom, and thereadjustments meant to homogenize cultural-linguistic politics in Belgium willfollow the same route. Those in Canada who argue for Quebec independenceon the basis of the provinces natural evolution (and concomitantly those whospeak of the partition of Quebec should it secede from Canada) are doingno more than pursuing the logic of disaggregating federalism as it has beenexperienced elsewhere.Still, disunifying federalism invariably has a unifying counter-current.The re-configured Commonwealth of Independent States as a reaction to thecollapse of the Comintern, and the move to greater political integration inEurope concomitantly with separatist movements in, for example, France,Spain, and Italy, as well as devolution in the U.K. suggest that large-scaleexplicitly unifying (or recombinant) federalism is frequently a corollary ofdisunification or threatened disunification of smaller political units. Someargue that the North American Free Trade Agreement is simply anotherinstance of this type of recombinant federalism.Moreover, political disunification can often lead to a discovery (or rediscovery) of implicit confederacies. In what ways do informal affiliations amongSlovenia, Croatia, Hungary, and the Czech Republic implicitly recreate the265

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Austro-Hungarian Empire to the exclusion of their erstwhile political

partners Serbia, Bosnia, Montenegro, and Slovakia? Can one find similar,but contrasting, linkages in the Visgael grouping of Poland, Hungary, Slovakia,and the Czech Republic? Were Canada to fracture, one could well imagine theemergence or reinforcement of implicit confederacies among British Columbiaand Washington, Alberta and Texas, and the Maritime provinces and NewEngland states. Again, those who imagine disunifying federal projects asexclusively the product of official institutions would do well ask what implicitfederations are being simultaneously generated or enhanced.If both unifying and disunifying motifs are present in all federal projects,then federalism must be conceived as a reconstitutive or dialogic politicalproject. The Canadian federation is an object lesson. In Canada, the dominantmotif for confederation has usually been cast as unifying or nation-building.Certainly the endeavour aimed at creating a single British North American statein counterpoint to the American republic. But however much nation-buildingwas a goal in view, the initial project is also an example of an explicitlydisunifying federalism.Like federalism in the United States and Australia, this unifying federalism in Canada also had its exclusionary features: none of Newfoundland,Prince Edward Island, British Columbia, Prince Ruperts Land, and theSelkirk settlement was included in the Act of 1867. Again, as in the UnitedStates, there were several forms of disunification consequent upon the newfederal arrangement. Recall that the Charlottetown Conference was calledsolely to discuss Maritime Union. What happened to that project in the intervalbetween Charlottetown and Quebec in 1864? After 1867 the vestige of Maritime Union explicitly survived only in the regional rather than provincial basisof Senate apportionment. Perhaps the declining economic clout of theMaritimes, the blandishments of the Colonial Office and the cross-cuttingcentrifugal tendencies of language, religion and economics prevented amaritime sectionalism from sprouting into an ongoing separatist movement.The further dimension to disunifying federalism in Canada foundexpression in the Constitution Act, 1867 itself. Confederation explicitlyembraced the apparently final dissolution of the old province of Quebec, solabelled after the Quebec Act in 1774 to continue the formal Royal colony ofNew France (although the recurring coalition between Quebec and Ontariopremiers throughout the twentieth century might suggest a continuing informalcounter-current). Once previously, separatism (in the instance, the movementof English-speaking immigrants that led to the creation of Ontario) haddestroyed the unity of the old province of Quebec and had produced aquasi-executive federalism in the person of the Governor of Canada (but not afederal legislative body) between 1791 and 1841. The Canada reconstituted bythe Act of Union in 1841, with a unitary legislative, but dual administrative and266

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judicial structures, was a half-hearted attempt to recover the political unity of

pre-1791 Quebec. After 1867, duality permeated all governance functions. Thepresent disjuncture between compact theories of Confederation prevalent inQuebec and nation-building mythologies dominant elsewhere attests to theinherent bivalence, and ambivalence, of Canadian federalismat once unifying and disunifying.* * *To summarize, regardless of whether an aggregating or a disaggregatingmotif predominates in constitutional mythology, all federal projects are, atseveral levels, reconstitutive. Be the social, economic and political impulsesdriving a federal project integrative or devolutionary, for every explicit setof political institutions being established, there are a like number of explicitpolitical institutions being destroyed or disabled. More than this, in every casean explicit federal project not only leads to the creation of new political institutions, it spawns several new implicit political institutions that carry the traitsof these newly created federal units. Finally, just as new implicit politicalinstitutions are being generated or enhanced, so too multiple implicit politicalinstitutions are being destroyed or attenuated. Today, those who inquire into theconstitutional meaning of international treaties such as those establishing theNAFTA or the International Criminal Court, international institutions like theWTO, the ILO and the WHO, and international organizations such as the RedCross/Red Crescent, Doctors Without Borders and the ILA, and who see onlythe external, institutional manifestations of globalisation would do well toreflect on the necessarily reconstitutive character of all federal projects.B. PLURAL AMBITIONS: MAPPING FEDERALISM IN SOCIETYFederalism has typically been conceived as a structure of governance thathas no essential substantive content. Its ambitions, consequently, are readilyadmitted to be both multiple and discordant. Social, economic, political,ethnocultural, linguistic and religious matters all appear, either individually orin combination, as organizing aspirations. For this reason, structural argumentsabout the character of the state being created (the scope, scale, and intensity ofthe federation) are not free-standing. They are intimately bound up with, andare sometimes not too subtle surrogates for, substantive arguments about thecentral or primary locations of human affect and belonging across a wide rangeof relational experience.Hamilton and Madison in the United States, just like Galt and Brown (orCartier and Tach) in Canada, each understood the project in which he wasengaged quite differently. For the former in the pairings, a federal state wasessentially an economic enterprise; for the latter it was a political andsociocultural self-defence pact. For the former, the central government was cre267

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ated to arrogate and exercise authority in the pursuit of a whig agenda; forthe latter, the central government was to be feared and its authority limitedor diffused. Yet all saw federalism as a mechanism to layer political power:sometimes for reasons of economic sectionalism (as J.C. Calhoun would laterargue in the nullification debates, and Joseph Howe would proclaim in theattempt to withdraw Nova Scotia from Canada); and sometimes to recognizeand preserve ethnocultural locality (as Jefferson Davis and other Confederateapostles of disunion would claim, and as Christopher Dunkin and DArcyMcGee would claim about the lived experience of linguistic and religiousdiversity in Quebec).Closely considering these political, economic, sociocultural and psychological factors reveals a fundamental question that is begged in most federalismtheory: within a given federation, why should jurisdictional fault-lines alwaysbe drawn in exactly the same place? This begged question became increasinglyimportant as the twentieth century unfolded, principally because of the appetiteof the state after World War II to claim authority over broader domains ofhuman action. In so doing, the state purported to dismantle or disenfranchiseother associations and institutions through which human beings build relationships with each other. The twin impulses of Jacobin political ideology pursuingRousseaus general will and Marxs historical determinism provided a justification for the all-embracing or totalising state. Non-state institutions ofcollective action, often organized on multiple federal principles, came to berecast as state agencies whose jurisdictional competence was set by the politicalconstitution.In noting the expansive role of the contemporary state, I am not lamentingthe era of small-government. Rather I mean to question whether eighteenth andnineteenth century federal configurations of political authority, grounded in anideology of small-government, are still adequate to twenty-first centurybig-government purposes. One might usefully begin by considering how thesocial, economic, ethnocultural, and religious dimensions of everyday life weremanaged by non-state institutionshabitually acting through their own federalized processes and structures.With few exceptions relating mostly to primary schooling, in mostprovinces at Confederation, social and educational services were organised andadministered by religious or charitable institutions. Activities involved notjust orphanages, asylums, homes for wayward youth and unwed mothers, butalso soup kitchens, thrift stores, and hostels. Moreover, immigration societies,temperance unions, the Royal Institution for the Advancement of Learning,mechanics institutes, sailors rests, the YMCA, and fraternal associationsplayed a central role in community building. Invariably, their managerialstructure followed a federal model, but the individual patterns of jurisdictionalattribution did not necessarily track provincial (or other political) fault-lines.268

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Most often the federal organization was subprovincial, but sometimes it wasregional, and occasionally intercolonial. Even hierarchically-organizedinstitutions, such as the Roman Catholic Church, were obliged to federalize thedistribution of ecclesiastical authority along ethnic and linguistic lines.As the provinces began to allocate funding to these institutions andendeavours, they came to demand province-bounded organizational structuresand to require that programmes and activities be limited to fields falling withinprovincial legislative jurisdiction. The Boy Scouts organisation, the VictorianOrder of Nurses, the Red Cross, and immigrant aid societies can be cited inevidence. In other words, the assault on the multiple and heterogeneous federalisms of non-state agencies commenced long before the central government inCanada actually came directly to assert a social welfare agenda in the 1940s andbegan to engage in jurisdiction squabbles with the provinces.A similar story may be told about economic institutions. In 1867, fewbusiness corporations traded predominantly on a provincial level. Economicactivity was either local, or it was national (even Imperial). Thus, even thoughthe Montreal business elite, as abetted by foreign railway and financialinterests, succeeded in having most commercial matterstrade and commerce,weights and measures, banks and banking, bills of exchange, interest, and so onallocated to the federal government, most national enterprises were eithersomewhat less than (or greater than) national in scope and scale.The economic logic of a federalized Canada only began to emerge withthe legislative and infrastructure projects of Macdonalds first National Policy.As entrepreneurs found in provincial governments willing collaborators in theirrent-seeking behaviourthrough subsidies, government contracts, favourabletaxation, and transportation policiestheir corporate organization frequentlycame to reflect the same territorial boundaries as the political state. During theearly twentieth century, when the state became increasingly concerned withlabour marketsunions, workers compensation, labour standards, etc.thereconfiguration of business enterprises along lines that tracked politicalstructures was accelerated.Consider finally questions of language and religion. In theory, theConstitution Act, 1867 consigned Acadians, franco-Ontarians, andfrancophones in Ruperts Land to the ash-can of history. Thanks to Louis Riel,the third of these managed to achieve some formal constitutional protection inthe Manitoba Act of 1870. Not so for franco-Ontarians and Acadiansthelatter of whom had to wait until almost a century later before achieving constitutional recognition in New Brunswick. Throughout the twentieth century,informal ethnic and cultural associations and organizations structured not on

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provincial, but on regional lines, flourished. Moreover, for Canadas first

century, the government of Quebec actually subsidized not only trans-borderorganizations in northern New Brunswick and along the Ottawa River, butalso in the Canadian west. Religion also did not find itself trapped in logic ofprovincialism. The initial organization of archdioceses and of the PresbyterianTemporalities Board, whose liquidation gave rise to litigation under section129, was driven by pastoral and not by the territorial or jurisdictional principlesof the Constitution Act, 1867. But after World War II, as governments manufactured a role for themselves as cultural entrepreneurs, promoting, for example,the arts, bilingualism, and multiculturalism, organizations promoting languageand culture came to reconfigure themselves along the same geographic andtopic lines as official political agencies.* * *Primarily for geographic reasons, almost every non-governmentalinstitution involved in a citizens everyday life in pre-Confederation BritishNorth America was organized on some sort of federal principle. And in veryfew cases did the jurisdictional fault-lines map directly on to provincial (evennational) boundaries. Today the picture is different. Many believe thatquestions of social redistribution should be directly (and exclusively) handledby the state, with the consequence that one (and only one) organizing logic forservice delivery survives. The jurisdictional determination is made on the basisof provincial geography. Even where state involvement is limited to subsidyand contract, there is a similar distributional logic. Whatever may be thepretence to social diversity and organizational heterogeneity reflected in thefederalism of 1867, in most circumstances today, the politics of federalism is apolitics of the Jacobin nation-state. Explicit, public, and unitary politicalambitions control and the richness revealed in heterogeneous federalismshave disappeared from large segments of social, economic, and cultural life.C. PLURAL SITES: MULTIPLE CENTRES OF STATE POWERIn the Western political tradition, the functional components of government are conventionally held to be threethe legislative, the executive andthe judicial branches. Each can be imagined as a distinct site of federalism.Nonetheless, most early federal theorists were preoccupied with, and mostfederal constitutions focused upon, the distribution of legislativepowerthe assumption being that the delegation of power to enact laws wasthe true measure of a peoples sovereignty. Hence, in the United States, theConstitution for the most part cast the scope of national executive and judicialpower in relation to how it attributed legislative jurisdiction, even thoughthe judiciary was also given interstate authority, and the President a list ofspecified powers (e.g. the war power, the nomination power).

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These observations suggest that an analysis of the sites of federalism

must have two objects: it is important to consider how federal principles shapethe emergence or recognition of all types of legal normsand not just statutes(i.e. normative federalism); and how these same considerations bear on thejudicial and executive institutions that give effect to both legislative andnon-legislative instruments of governance (i.e. institutional federalism).Notwithstanding that the Diceyan conception of the rule of law directsattention to Parliamentary legislation as the primary legal artefact, in themodern state there are a multiplicity of normative forms. These formsembraceto differing degrees in differing political and legal traditionsbothofficial and non-legislative forms like judicially-declared law, administrativeacts and decisions, and government tax, subsidy and contract practices; and alsonon-official and non-legislative forms like custom, supereminent principles,practice, contracts, industry standards, authoritative doctrinal writing, opiniojuris, and so on. I address these in reverse order.Consider how conceptions of federalism might bear on differentexpressions of legal normativity that have no official institutional source. Isit necessary to hold that everyday human interaction in matters of familylaw, property, contracts, and civil liability generates legal rules the scope ofwhich must be limited by provincial boundaries? Presumably customs, usagesand practices have a normative weight that does not depend on recognition byeither provincial or federal governments (depending on the pith andsubstance of the rule in issue). Again, must the standards developed by Underwriters Laboratories, the Canadian Forest Products Association, the UrbanDevelopment Institute, and the International Organization for Standardization(ISO) respect the constitutional distributions of power set out in sections 91 and92? Presumably the Urban Development Institute could promulgate standard-form contracts for use in some provinces but not others, or in some parts ofa province but not others, or even in some parts more than one province. Inother words, this legal character as felt in everyday lives is not (and cannot be)measured by the metric of justiciability through court-sanctioned state action.Law is also made by non-legislative official institutionsnotably,administrative agencies and courts. Of most interest is the law-making activityof the latter as reflected in the judicially-declared common law. In theory, thereis but a single common law world-wide. Yet significant national (Canada asopposed to Australia or the United Kingdom), regional (Western Canada asopposed to the Maritimes), provincial (British Columbia as opposed toAlberta), federal (the provincial common law in a given province as opposed tothe federal common law operative in that province), and even inter-court (thesmall claims courts as opposed to the superior courts in a province) variationsexist in this common law. Upon what federal principle do courts determinethe boundaries of these diverse common laws, or in appropriate cases, theprinciples of equity, ecclesiastical law, admiralty law, and so on?271

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The same question may be asked of the several institutions by which lawis administered or applied. As noted, the distribution of judicial jurisdiction inthe United States essentially follows the distribution of legislative jurisdiction.A dual court system is not, however, a necessary feature of federalism. InCanada, for example, provincially-constituted courts staffed by provincially-appointed judges administer reams of federal law as well as provinciallaw, and provincially-constituted courts staffed by federally-appointed judgesadminister reams of federal and provincial law indiscriminately. Sometimesprovincially-constituted courts with federally-appointed judges are conscriptedto administer federal lawas in bankruptcy. Sometimes, as in the case of theFederal Court, federal courts with federally-appointed judges administer onlyfederal law, and sometimes federal courts with federally-appointed judgesadminister all types of law (as in the case of the Supreme Court of Canada).If judicial institutions may be federalized along principles different fromthe legislative power, would a similar logic apply to executive and administrative institutions? Historically, this was the pattern of the legislative union,but administrative duality pursued in Canada East and Canada West between1841 and 1867. Vestiges remain today. It is clear that where an administrativeor executive agency is established by statute, the power to create that agencymust be vested in the relevant legislative assembly. But the mandate andactivity of the agency need not always be limited in this way. A Law Commission or a Civil Code Revision Office, or a Social Science and HumanitiesResearch Council may examine or fund research into any area of law.Does the same reasoning apply when the agency is established by prerogative? For example, would a royal commission established under theprerogative of the Lieutenant-Governor be necessarily limited to examiningquestions that fall within provincial jurisdiction? Again, the answer depends ofthe governance function actually being performed: authority to collect information, conduct research, make recommendations, and distribute benefits is lessconstrained than authority to impose burdens, enact formal rules, and decidedisputes. In this connection, it bears notice that one of the central executivepowers in a Parliamentary democracythe assent to legislationhas alwaysbeen federated on a different principle than either legislative or judicial powers:the powers of reservation and disallowance are a sovereign executive jurisdiction that vest ultimate authority in provincial matters in the federal executiveand in federal matters in the Queen.It is not just the formal institutions of executive governance that displaymultiple federal dimensions. So do the everyday institutions, instruments andactivities of the modern administrative state. Governments typically manageproperty, personnel, information, and money using instruments as diverse aslegislation, prerogative, taxation, subsidy, contract, ownership, and so on.Consider first the most visible of the governance institutionsthe regulatory272

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agency. What principle of federalism governs the powers of executive agencies

that have been delegated powers to both make law and to apply law? As far as Iknow, it has never been decided that jurisdiction to adjudicate must strictlytrack sections 91 and 92. Indeed, the idea of interdelegation to ajointly-constituted regulatory agency is evidence of how administrative boardsand commissions can become sites of federalism with a tailor-made jurisdiction. Exactly what jurisdiction is the subject of interdelegation, and what structure of interdelegation is chosen, is as varied as the agencies themselves.The further aspect of administrative federalism relates to the panoplyof other instruments of regulatory governance: notably, owning, taxing,contracting, borrowing, and subsidising. Suppose a provincial governmentwere to purchase real estate in another province. To what extent woulddoctrines of intergovernmental immunity be applicable, and if so, is this thesame as the intergovernmental immunity that may apply to federal parks orother works or undertakings in provinces? In Canada, the primary locus ofdispute about the boundaries of executive federalism of this sort has been inrelation to the spending (and more recently, taxing power). But the scope fordeploying alternative governing instruments is much broader. Historically,governments often pursued their regulatory agenda through Crown corporations (the ownership function). Increasingly, they are doing so throughpublic-private partnerships and procurement (contract). In few federationsare the spending, taxing, owning, and contracting functions of governmentlimited strictly to purposes within the realm of their legislative competence.* * *These reflections suggest that a richer understanding of normativity andof instruments of governancethat is, a much richer understanding of themultiple sites of federalismwill generate a more pluralistic conception of thefault-lines of federalism. Over the past century, courts and scholars have developed sophisticated doctrines for assessing the scope of the legislative jurisdiction attributed by sections 91 and 92. But there is nothing even as remotelysubtle as this jurisprudence in relation to other governmental functions. It isnow the time to theorize prerogative, executive, administrative, judicial,quasi-judicial, and delegated legislative powers along jurisdictional fault-linesappropriate to each. It is also time to develop interpretive doctrines for borrowing, taxing, spending, contracting, owning, and administering that are equallyas subtle as those invoked to mediate conflicts of legislative jurisdiction.D. PLURAL MODES: TERRITORIAL, PERSONAL, ANDPSYCHOLOGICAL FEDERALISMIn the Introduction to this paper, federalism was presented as muchmore than a political doctrine about the manner of dividing sovereignty and273

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allocating the functions of government on a territorial basis. When all its formaland informal, institutional and non-institutional, quotidian and exceptionalvariants are considered, a highly variegated picture emerges. Most importantly,the state is revealed, despite its claims for itself, not to be the most salientnormative institution for most people. Indeed, it is only possible to talk of federalism in the state once people have already embarked on the project of decidingwho they are in relation to others and to the institutions and associations withinwhich these relationships are pursued. These non-state federal reflexes set thescope of the personal and collective agency (sometimes called sovereignty) thatpolitical institutions are then meant to facilitate and promote.There are at least three distinct types of what might be called relationalnon-state federalism. Think first of the panoply of voluntary associations andother institutions of civil society that human beings typically join and engagewith as part of their sense of self. Most are themselves federated institutions:religious institutions, bridge clubs, farmers organizations, boy scouts, cancersocieties, poverty relief associations, environmental groups, guilds and clubs,and a myriad of others. Notwithstanding the professional reflex of juriststo de-legalise these organisations as mere social institutions or voluntaryassociations, they substantially mediate the central issues of everyday life inCanadatranscendent belief, language, heritage, and aspiration. Moreover, inmost cases, they do so with only a tenuous regard for distributive decisionstaken in the political domain. In other words, the forms of relational non-statefederalism are as multiple and variegated as the forms of political federalism.At a second level, there is the vast range of institutions that are called inaid of economic activity: business enterprises, trade unions, universities, andhospitals. So, for example, in most corporate structures, and in everyday formsof corporate reorganization, shareholders of different categories have differentrights. Their shares (their title of belonging) are not always identical, and willalways confer a number of different prerogatives and obligations. Again, in anybankruptcy workout, it is necessary for the trustee to divide and organizecreditors into discrete categories, depending on the nature of their claims. Theauthority of these creditors to accept or reject a proposition and to bind others todecisions taken is determined by the particular status as creditor (that is, thetype of claim they are asserting).Finally, and a bit closer to home, the modern university is a remarkablydifferentiated structurewithin its units, across its disciplines, andextramurally. As a law professor I find my citizenship as a member of theFaculty of Law, of McGill University, of the Canadian Association of University Teachers, of the Canadian Association of Law Teachers, and of the QuebecAssociation of Law Teachers, not to mention the circles of interaction I sharewith other Canadian constitutional law teachers, with colleagues in other

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departments, with collaborators in various interdisciplinary research teams, and

in the countless informal groups that give direction and purpose to my everydayactivities.Let me conclude this subject by briefly noting a third kind of relationalfederalism suggested at the outset of this essay: the federalism of the family. Ineed not go over that ground here, other than to note, once more, that themanner of conceiving the federal principle within the family, and the specificmanner in which tasks and responsibilities are distributed is both quite subtle,and not predetermined by the way these allocations are made in the realm ofpolitical federalism.In all the examples of federalism so far consideredwhether in thepolitical institutions of the state, where citizens are invited to display loyalty tothose who wield coercive or symbolic power as their delegates, or in myriadother circumstances where social institutions imply multiple layers of agencyand affectan implicit or explicit other has always been present. The idea ofrelational federalism calls forth a collective project involving aspirations aswell as structures, processes, and institutions for their invention, identification,and accomplishment.But undue emphasis on federalism as a collective project understates thepervasiveness of federalism as a personal project. The truest federalism is apsychological federalism that decomposes not political and anthropologicalaffiliations, but legal subjects themselves. Critical theories of legal pluralismnot only model the diverse motifs, ambitions, sites, and modes of federalismthat compete for citizen engagement, but also acknowledge the law-generatingcapacity of the legal subjects. A legal subject is himself or herself a site of law;and once a site of law, a legal subject is necessarily a federation.The point merits emphasis. Those who argue for notions of personalfederalismdepending on perspective either pre-Westphalian (feudal) orpost-Westphalian (in multi-ethnic states)have only a truncated view ofpsychological federalism. While one might well imagine some notion ofcosmopolitan citizenship, in which people affiliate without primary regard togeography (any country that has systems involving two or more public schoolboardswhether based on language, religion, or nationalityoperative in thesame territory knows the phenomenon) the federalism in issue remains arelational federalism. The criterion of distribution of agency and structure haschanged from territory to commitment, but the notion of federalism remainsexternal to the legal subject, who has no role other than as passive citizen.Psychological federalism rests on a different premise. Rather thandecompose institutional affiliation, it decomposes legal subjects. Might not theworld-wide-web be the modern interpersonal instantiation of contemporary275

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psychological federalismproviding a link with traditional relational federalism? Psychological federalism strongly contests all forms of legal subjectivitythat imply nationalismeven those that attempt to compose with multiplenationalisms. Both territorial and personal federalism rest on three questionableassumptions about individual identity. First, they only recognize certainidentities. Second, they presume that some of the identities that they doacknowledge are more important than others: these key identities are said todefine the identity of the state. Third, they tend to essentialize identity for thepurposes of giving or denying legal recognition.Psychological federalism accepts that identity is not unidimensional;identities are cumulative, intersecting, overlapping. Contemplate the basesupon which a person reflects, reacts, speaks, or presents himself or herself inpublic. That person might claim to be doing so as a white, or a heterosexual,or an anglophone, or a male, or a lapsed Protestant, or a 55 year-old, or someonewho is legally-trained, or a bald person, or a resident of Montreal, and so on.How does one know whether another is speaking as some of these things (thatis, as reflecting only one or the other of these particular identities)? As all thesethings at once? Or as none of these things?In the end, identity is for each legal subject to discover and appropriate.There is no litmus test for identitysay as a francophone, as a mulatto, or as awomanthat can trump self-ascription. It is not for the state to say that FlixLeclerc is a white, male, francophone singer if he (she) understands himself(herself) to be a black, female, hispanophone painter. The state, just like otherinstitutions within and through which a legal subject forges relationships, mayview certain identity claims as less plausible than others, but the question ofplausibility is always itself interactive and iterative. The conventional federalconception of identitywhether of national identities, subnational identities,or particular relational identitiesperemptorily denies to legal subjectsthe possibility of negotiating the contours, contents, and cardinality of theirmultiple identities.* * *At bottom, arguments for federalism presume that social diversity issufficiently important to merit structuring governance institutions. Theseinstitutions do more than manage collective life. They elaborate processes andregimes that both reflect and constitute the identity of legal subjects. Someidentities are relational (that is, are formed in interaction with social groups);some are psychological (that is, are formed in interaction with onesunderstanding of how one conceives oneself). Relational federalism, whetherterritorial or personal, conceives the distribution of agency and sovereignty asexternal to the legal subject. Psychological federalism is a federalism internal to

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the legal subject. Each legal subject is constantly remaking his or her relationships with others, and reallocating the scope of authority that these others areacknowledged to exercise in ascribing a particular identity to any pattern ofinteraction.CONCLUSION: KALEIDOSCOPIC FEDERALISMThroughout this paper I have argued for a conception of federalism thatdraws on contemporary understandings of law and legal normativity: mostnotably, legal pluralism. Many constitutional law scholars today lament thefixation of judicial and doctrinal interpretations of federalism that have beenlong abandoned in almost every other field of law: the early twentieth centuryDiceyan rule of law model of pure legalism.Recall the foundational postulates of mainstream federalist theory. First,law is presented as a systematic assemblage of official rules of general conductattributing various types of rights to discrete legal subjects. In this model, law isto be exclusively associated with the normative outputs of the state. Thisaffirmation may be described as a postulate of legal centralism. Second, therecan only be a single legal order in any geographic territory. Federalism merelypluralizes the components of an otherwise unitary legal regime in that asupreme constitution authoritatively allocates law-making authority todifferent legislatures. This affirmation may be described as a postulate of legalmonism. Third, law results from the explicit activity of specified institutionssuch as legislatures, courts, and executive agencies. All the outputs of theseinstitutions are law simply because of their origin; nothing can be law unless itemanates from them. This affirmation may be described as a postulate of legalpositivism.In a legal pluralist framework, by contrast, law is presented and represents itself as radically non-centralist, non-monist, and non-positivist. Legalartefact, social milieu, and particular identity are seen as mutually constitutingand constituted, as an unsystematic melee. Because each legal subject isconstantly deciding the relative weight of rules, processes and values asamongst the several legal regimes that attract loyalty and commitment, thestates pretence to unify or rank these regimes is, both temporally and territorially, contingent.The legal subject negotiates identity in every location of interactionsociety, community, workplace, family, and the statewith the many(the hundreds, the thousands of) other legal subjects negotiating their identitiesthere as well. Particular legal subjects are shaped by the knowledge and identities they inherit, create, and share with other legal subjects. So too with thedifferent sites of law. They are constituted by the knowledge they possess,create, and share through particular legal subjects. By imagining law as a mode277

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shifts inquiry towards thinking of law as meaning, not machinery (as aspiration,not structure; as narrative, not norm).In this construction of meaning, the metaphor of federalism is mostappropriately a metaphor of mtissage. For the legal subject himself or herselfis the meeting ground of multiple legal subjectivities (citizenships), and thepoint of the encounter is the continuing dynamism and disorder that such anencounter presupposes. Those who see federalism as the static parallelism oftwo citizenships whose differences must be reconciled in the construction ofa fictitiously coherent and stable whole, are trapped by a logic in which theuncertainty of encounter is either absent, past, predetermined, or alreadydigested. A federalism of mtissage is a federalism that highlights the mixingrather than the mix.And so I come at last to the title of this paper: kaleidoscopic federalism.Kaleidoscopic federalism is a federalism that focuses more on the actualdeployment of social and political power, than on abstract questions of whomight, in theory, possess it.Why kaleidoscopic? Because a kaleidoscope of continuously shiftingshapes and colours, juxtapositions and patterns reminds us that processes,structures, and institutions in law are also in constant flux. Within each ofseveral dimensions there will be dynamic distributions of agency and authority.We can no more know just how jurisdictional attributions will play out inadvance, than we can know what jurisdictions will be in issue. We can no moreknow which relationships will be privileged, than we can know who will beprivileged within these relationships.Federalism is a metaphor for imagining the manner in which citizensconceive who they are and how they organise the relationships through whichthey pursue their purposes and ambitions in concert with others across theentire range of human interaction. Those who see federalism only as thestructural consequence of a document called a constitution forget that federalism comprises both implicit and explicit texts and practices, as these areconstantly churned by the pestle of everyday interaction in the mortar of socialinstitutions. A kaleidoscopic federalism is fundamentally a federalism of aspiration or virtue: a federalism of equal respect, self-doubt, and trust that keepscontingent the interplay of agency and structure in the construction of self andother.A quotation from a good friend and colleague provides an eloquentcounterpoint to the view of federalism argued here. She says: I abandonedfederalism and became a separatist when I did research on the declaratorypower. How can you have a federation where jurisdictional boundaries are in278

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flux, where one governmental agent can trespass on the territory and governingcompetence of the other, and where sovereignty is not clearly allocated? Well,in my view, unless this is the caseunless you are prepared to tolerate shiftingboundaries, different and multiple fault lines, and overlapping claims ofauthority, and to acknowledge that identity cannot be simply fractionated andparcelled out to different institutions in discrete packageswhatever else youhave, you dont have federalism.Postscript: Sources and ReferencesThe three central questions addressed in this paper are: (1) the history,foundations, structures, modes, and sites of federalismwith particularreference to Canada; (2) the design of institutions to accommodate linguistic,cultural, and social diversity; and (3) the construction of federal identity and thebearing of theories of legal pluralism on how these identities are mediatedthrough law. Much of my own work over the past decade has focused on thesethemes, although I have not heretofore tried to draw them together in a singleessay.1.

History, Foundations, Structures, Modes, and Sites of Federalism

Standard theories of federalism typically presume a fixed, monistic

arrangement of normative institutions and normative forms. Territory becomesthe sole differentiating criterion, and little attention is devoted to how thesearrangements are actually churned by everyday interaction. More recently,some theorists have developed the concept of personal federalism as a way tonegotiate cultural difference in the same territory. Both are forms of relationalfederalism.I have discussed the history, images, and narratives of federalism inCanada in a series of texts that consider the place of Quebec, and Quebec legalinstitutions in the contemporary constitutional order. See Harmonizing theConcepts and Vocabulary of Federal and Provincial Law: The Unique Situationof Quebec in The Harmonization of Federal Legislation with Quebec CivilLaw and Canadian Bijuralism (Ottawa: Department of Justice, Canada, 1997)at 29; Encoding Canadian Civil Law in J.E.C. BRIERLEY et al., eds.,Mlanges Paul-Andr Crpeau (Cowansville: ditions Yvon Blais, 1997) at579; Three Centuries of Constitution-Making in Canada: Will There Be aFourth? (1996) 30 U.B.C.L. Rev. 211; Meech Lake to the Contrary Notwithstanding: Part I (1991) 29 Osgoode Hall L.J. 253 ; and Meech Lake to theContrary Notwithstanding: Part II (1991) 29 Osgoode Hall L.J. 483.The recent scholarship of three colleagues from Quebec, David Howes,Jean Leclair, and Jean-Franois Gaudreault-DesBiens is particularly insightfulon these problems. See D. HOWES, La constitution de Glenn Gould :le contrepoint et ltat canadien in J.-G. BELLEY, ed., Le droit soluble : con279

Institutional Design to Accommodate Social Diversity

To date, questions of instrument choice and institutional design have

been dominated by public choice theorists who assume that different processesof legal and social ordering are morally neutral and fungible. In discussionsof federalism, this perspective is translated into the idea that federalism isfundamentally a choice about the location of rational structures of institutionaldecision-making, and the substantive content of canonical texts meant toattribute constitutional virtue (such as Charters of Rights). The alternative is tosee instrument choice as a contingent interplay of agency and structure in theself-construction of citizens.

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I have addressed these problems of institutional design from the perspective of social ordering processes in The Swiss Army Knife of Governance inP. ELRADIS, M.M. HILL and M. HAVLETT, eds., Designing Government:From Instruments to Governance (Montreal and Kingston, McGill-QueensUniversity Press, 2005) at 203; The Governance of Human Agency in Canada. Parliament. Senate. Special Committee on Illegal Drugs, Canabis, ourposition for a Canadian public policy: Final Report / Senate of Canada, SpecialCommittee on Illegal Drugs (Ottawa, Ont.: Senate of Canada, 2002), online:Committee Research Papers <www.parl.gc.ca/37/1/parlbus/commbus/senate/com-e/ille-e/research-papers-e.htm>; The Integrity of Institutions: Role andRelationship in Constitutional Design in R. MACDONALD, ed., Setting Judicial Compensation: Multidisciplinary Perspectives (Ottawa: Law Commissionof Canada, 1999) at 7; The Design of Constitutions to Accommodate Linguistic, Cultural and Ethnic Diversity in K. KULCSAR and D. SZABO, eds., DualImages: Multiculturalism on Two Sides of the Atlantic (Budapest: RoyalSociety of CanadaHungarian Academy of the Sciences, 1996) at 52; Recognizing and Legitimating Aboriginal Justice: Implications for a Reconstructionof Non-Aboriginal Legal Systems in Canada in Aboriginal Peoples and theJustice System: Report of the National Round Table